Canada: Avoiding Common Pitfalls Of Workplace Investigations

To help employers, including general counsel and HR teams, refine their workplace investigation policies and procedures, our Employment, Labour & Equalities Group hosted a webinar exploring the common pitfalls that often befall such investigations.

If you missed the webinar, or are simply looking for a quick recap, below are the key tips arising from our discussion.

Four common pitfalls to avoid when conducting investigations in the workplace

1. Choosing the wrong workplace investigator

Typically, HR will conduct the investigation. However, the members of your HR team may not always be the best suited or qualified for the task depending on the complexity and nature of the allegations. In these cases, we recommend HR recuse themselves and assign the investigation to another qualified person either inside or outside your organization.

In addition, any form of bias (whether it be real or perceived) or personal relationship between the investigator and the parties involved could compromise the integrity of the investigation and lead to a flawed outcome or an outcome that is open for challenge. If there is a risk of bias, your organization should assign the investigation to another person (typically outside the organization).

2. Not investigating complaints promptly

A common mistake is the failure to act promptly. This does not mean "drop everything immediately" but you should acknowledge the complaint in writing and inform the complainant that you're looking into the complaint.

Depending on the nature of the complaint, you may need to promptly put in place interim measures while conducting the investigation, such as moving one of the parties to a different area of the workplace or placing the respondent in an administrative suspension.

Ideally, plan to complete any investigation within 90 days unless compelling reasons prevent you from doing so. Remember, memories fade over time. You will get the best evidence if you act promptly.

Always consult your own policies and/or collective agreement to determine whether you must take certain steps within specific timelines.

3. Not communicating effectively with an employee on leave

When an employee involved with an investigation is on leave – whether they be the subject of the investigation or the complainant – employers must still keep the employee's rights and obligations at the forefront of their minds when conducting the investigation.

If an interview with the employee on leave cannot wait until their return, be sure to explain the circumstances and the consequences of not participating in the investigation.

Most importantly, if the employee on leave will participate in the investigation, set out the expectations regarding the mode and frequency of communication. In doing this, you can avoid misunderstanding and potential risks (for instance, a situation where an employee claims you are harassing them with repeated phones calls and emails).

4. Not taking anonymous complaints seriously

While anonymous complaints can be difficult to investigate, ignoring them can come at a serious legal cost. If an employer becomes aware of a complaint that would require investigation, they are expected to conduct an investigation appropriate to the circumstances even if doing so entails maintaining the complainant(s) anonymity.

Failure to investigate can be a violation of applicable provincial or federal health and safety and/or human rights legislation.

For additional strategies on strengthening your workplace investigations, reports and policies, please watch the complete webinar or reach out to one of the authors.