COMMON MISTAKES THAT EMPLOYERS DO WHEN CONDUCTING A WORKPLACE INVESTIGATION
An employee files a complaint of sexual harassment against his manager. What do you do?
Firstly you want to meet with the employee in private and get as much information from him or her as you can about the incident in question. You want to take notes and you want the complainant to sign your notes to confirm the accuracy. During the course of obtaining this information, the Employee may ask that you keep the information that he or she is sharing confidential.
The ten (10) most common mistakes made by Employers when conducting a workplace investigation are the following:
1. The Employer cannot promise complete confidentiality to the complainant. The Employer can agree to disclose only the information necessary and on an as needed basis to be able to conduct a proper workplace investigation.
2. They assign the investigation to someone within the workplace but do not relieve that person from his or her other duties causing considerable delay between the date the complainant filed the complaint to the date of the decision.
3. The Employer fails to suspend the alleged offender during the course of the investigation with pay, making it such that many witnesses are not comfortable to come forward to indicate what they have observed for fear of retaliation
4. The Employer commences such workplace investigation without first reviewing their own Human Resources policies that governs the complaint such as “ sexual harassment” and accordingly the investigator is not following the steps set out in their own Human Resources Policy
5. The Employer commences such a workplace investigation without being familiar with the relevant legislation such as the Human Rights Act if we are dealing with a federally governed employer such as a First Nation or the Human Rights Code if we are dealing with a provincially governed Employer in Ontario.
6. The Employer fails to interview all the necessary witnesses making it such that they don’t have an accurate picture of what in fact took place.
7. The Employer fails to interview the alleged offender to get his version of the facts after they have spoken to all the other witnesses.
8. The Employer not realizing that the workplace investigation that is necessary is way above their level of expertise and they fail to reach out to an outside investigator to conduct the workplace investigation.
9. The Employer fails to advise the allege offender not to communicate with co-workers with respect to the matters under investigation or face discipline including termination;
10. The Employer fails to advise the complainant not to discuss the details of the incident with co-workers so that the witnesses testimony is only based on what they in fact observed and not on what they heard happened.
What most Employers don’t realize is that:
• If they try to terminate an Employee by alleging just cause without having conducted a workplace investigation; or
• That they botch the workplace investigation; or
• They fail to take the appropriate steps to protect the complainant;
they can be sued for either a constructive dismissal or a wrongful dismissal and the damages in both instances are costly.
Suzanne Desrosiers , Barrister & Solicitor March 1st 2016