August 11, 2021

Under The Microscope (Part 2) – How We Investigate

In our most recent post, we started to unpack the idea of workplace investigations, and examined the legal requirements for investigations as well as when they might be necessary. In this part of our Under The Microscope series, we thought it would be helpful to take a look at what a real investigation looks like, and how an investigator goes about the fact-finding process to issue a findings report. 

Who should conduct an investigation?

The Occupational Health and Safety Act (“OHSA”) requires employers to conduct an investigation that is “appropriate in the circumstances”.  In addition, under Section 55.3(1) a Ministry of Labour investigator can order an investigation “to be conducted, at the expense of the employer, by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a written report by that person.”

In light of that section, an investigation that is “appropriate in the circumstances” will have the following elements: Impartiality and competence. Is a lawyer always required? Not necessarily. 

If an organization has an individual trained in investigations and is unconnected to the parties to the dispute, the investigation may be appropriately conducted inhouse.  Resources are often constrained though, whether for large or small employers, so a third party is the right answer.  Employment lawyers are often the best answer, but an HR consultant trained in investigation may also be appropriate.  Where employment lawyers may shine though is in the assessment of credibility and the analysis of facts against the evidence.  Workplace harassment issues are often complex and nuanced, particularly where it involves very long service employees.  An experienced employment lawyer is often the right answer in such circumstances.  

In terms of impartiality, one question that often arises is whether an employer’s legal counsel, who provided privileged and confidential advice to mitigate legal risk, may also conduct a workplace investigation.  This is not the best practice so I don’t investigate on behalf of clients that I advise.  Client representation is necessarily biased and partial as solicitors are obligated to make the best case possible for a client.  This is not consistent with conducting an impartial investigation. While an employer’s regular solicitor plays an indispensable role in any investigation, he or she should always stay in the background, quarterbacking, not executing, the process. 

The investigation process 

Let’s take a hypothetical workplace scenario that is, unfortunately, all too familiar for many employers. Sarah is a young employee who has been with your company for two years. She is bright, hardworking, ambitious, and you have high hopes for her future development with the company. Suddenly though you notice that her behaviour changed sharply several weeks ago, and you grow suspicious. You schedule a private meeting with Sarah to check in on her, and make sure that everything is alright. She becomes incredibly nervous, and reveals that Joe, a longstanding manager in the company, assaulted her in the office late one evening.

After more conversation, Sarah tells you that Joe had been inappropriate with her for some time, making jokes about her appearance and her wardrobe, but that she had brushed them off because she did not want to be seen as complaining. She had also noticed him leering at her in a way that made her uncomfortable. She says that while she told two close co-workers, Lynne and Julie, about the incidents as they happened, she was uncomfortable coming forward for fear of losing her job.

You assure Sarah that you will be taking this seriously, and thank her for coming forward. You also realize that you and Joe have a close relationship, and you cannot conduct the impartial investigation that you know needs to happen. You immediately call your lawyer, who agrees that an investigation is needed, and tells you that a third-party investigator would be best. Your lawyer then reaches out to our office to confirm that we have no conflicts of interest, and are available to assist with an investigation.  

Our first step after getting all of the particulars from you is to set up a meeting with Sarah. We inform her during the meeting that we have been retained to investigate, and that we need to know exactly what happened in order to help you as the employer take action. We take detailed notes during our meeting, and record the conversation to make sure that we have the correct record. 

While we do our best to keep Sarah’s story from spreading around the office, a key part of our investigation is making sure that Joe is aware of the allegations that are made against him, and that he is given a full opportunity to respond. We provide Joe with a rough outline of our meeting ahead of our appointment, so that he is able to collect his memory and answer our questions directly instead of fumbling his way through the conversation. We have a lengthy conversation with Joe, where we speak candidly with him about the allegations, and give him a chance to respond. Lastly, we’ll speak privately with Lynne and with Julie separately, getting their versions of the story as well.

Once all of the interviews have been conducted, we spend the next several weeks preparing a report of our findings. Our job as a neutral third-party investigator is to take a critical look at every interviewee’s statements, and assess the credibility of their accounts to determine what most likely took place. If Joe appears to be lying and untrustworthy during his interview, it makes Sarah’s account of the events more believable. Alternatively, if Sarah appears suspicious and Joe honest, and Sarah’s friends confidentially reveal that she had a motive to punish Joe with her complaint, that paints a very different picture (admittedly this outcome is rare, but does sometimes occur). 

We then turn our full report over to your lawyer, so that you can make decisions about how to proceed with any discipline. OHSA states that Sarah and Joe are each entitled to know the outcome of the investigation, along with what actions will be taken, but they are usually not provided with a copy of the full report. Your lawyer can then work with you to strategize what discipline will be effective for resolving the current situation, and what policy changes should be put in place to prevent future incidents.

Doing your duty

The law is clear that, as an employer, you are responsible for taking these sorts of complaints seriously. OHSA requires an investigation appropriate within the circumstances, and the Ministry of Labour can appoint a third-party investigator if it deems necessary. Similarly when it comes to human rights, the Human Rights Tribunal of Ontario has ruled that an employer is required to take reasonable action to address complaints of harassment (Laskowska v. Marineland of Canada Inc., 2005 HRTO 30), which can be best dealt with through a thorough workplace investigation. 

The primary rule of investigations is similar to stunts you saw on television as a child – don’t try this at home. Unless you have a designated HR team that is trained in conducting investigations, doing so without the proper competencies can make a bad situation worse. Investing in the resource of a trained third-party investigator can help ensure that a situation is dealt with thoroughly, and can offer an added layer of legal protection against an employee’s potential claim that a situation was mishandled. 

If you think your workplace may need an investigation, get in touch. We’ll help determine the most efficient way to complete it, including guiding you and retaining an impartial and competent investigator on your behalf.