HE SAID. SHE SAID. NOW WHAT?

Conducting Effective Workplace Investigations

Employment & Labour Law Client Conference May 2012

Karen Bock, Toronto

Why this Topic?• Increasing number of complaints to employers• Increasing obligations to undertake investigations (eg. Bill

168)• Increasing scope of liability for employers for conducting

deficient investigations• intentional or negligent infliction of mental distress• conducting a “negligent investigation”• the tort of “gross negligence”• violation of privacy• defamation• false imprisonment

Why this Topic?

• More sensitive and difficult matters to investigate• Human rights allegations• Improper use of confidential information• Harassment and violence policies under the Occupational

Health and Safety Act

Why this Topic?

• Effective investigations mean effective risk management• public relations, reputation

• monetary claims by employees

• Determine scope and potential risks at earliest opportunity:

• Is a formal investigation necessary? Is conflict resolution/mediation a better approach?

• Consult and comply with your policies and/or collective agreement

• Get written summary of complaint before meeting with complainant, if possible

• Investigation not a “fishing expedition” – focus on what is relevant to the alleged misconduct

Identifying the Scope of the Investigation

Setting up the Investigation• Who will conduct the investigation?

• Internal investigator?• Third party expert - e.g., private investigator?• Lawyer – investigation report may be privileged and exempt

from disclosure?• Do they have appropriate training and/or experience in

• workplace investigations• sexual harassment or discrimination complaints?

• Is the investigator neutral and unbiased?

• Will the investigator be the decision-maker too?

Conducting a Fair Investigation

• Avoid biased investigations or pre-conceived notions unsupported by evidence—no jumping to conclusions!

• Ensure information gathered is complete, fair well-documented and well-organized

Conducting a Fair Investigation

• Are any interim changes to the complainant’s orrespondent’s employment status necessary?

• prudent to ascertain complainant’s wishes and accommodate (within reason)

• be cognizant of respondent’s privacy and reputational rights ( “innocent until proven guilty”)

Interviews• Conduct interviews soon as possible, while memories

are fresh and vivid

• Face to face interviews of key witnesses are crucial

• Ensure security of interviewer and interviewees

• Ensure privacy and confidentiality of interviews

• Keep full and complete record of interviews

Conducting a Fair Investigation

Plan order of interviews Plan each interview in advance Process is confidential

Interviewees should not discuss matter or their interview with anyone else

Avoid the “sharing” and “comparing” of information amongst witnesses

Employer should not guarantee confidentiality – allegations will usually be disclosed to respondent

Conducting a Fair Investigation

• Determine what happened - who, what, where, when, how – take careful and accurate notes

• Carefully gather documentary evidence

• Identify key witnesses who have direct or first-hand knowledge and who should be interviewed

• Assess potential risks to organization

Interviewing the Complainant

• Right to:• know the full scope of the allegations • opportunity to respond fully• timely investigation of complaint

• No Right to:• “silence” – can infer wrongdoing if witness refuses to answer• legal counsel during an interview (but may be prudent to

permit in certain cases)

Interviewing the Respondent

Concluding the Investigation• Assess the information and identify gaps - determine if gaps can be filled

by follow-up interviews or documentary evidence

• If investigator is a third party, carefully review their report.• Do not rely blindly on the conclusions alone• If any ambiguity in the report, seek clarification

• Make a determination:• Complaint is substantiated by investigation• Complaint is unsubstantiated by investigation• Investigation is inconclusive

• Standard of proof is “balance of probabilities”• Is it more likely than not that the event occurred?

Concluding the Investigation• Once a determination is made, it is crucial to take

action:

• Communicate the outcome of the investigation (but not necessarily the final report) to the parties

• If complaint is substantiated, determine appropriate remedy for complainant and appropriate discipline, if any, for respondent

• Take steps to prevent future occurrences (follow-up response is important for limiting extent of employer’s vicarious liability)

Concluding the Investigation• If the complaint is unsubstantiated, consider whether response is

still appropriate, such a training or counselling

• If the investigation is inconclusive, explain to parties that this is not equivalent to “innocent” or “guilty”

• Remind all parties of the obligation of confidentiality

• Remind all parties that reprisals are not permitted

Conducting Effective Workplace Investigations Key Take-aways

• Clearly identify the scope of the investigation and identify opportunities for proactive risk management for employer

• Consider whether a formal investigation is required

• Choose the appropriate investigator

• Conduct a fair investigation – careful and timely gathering of information from all persons with direct and relevant knowledge

• Always act in good faith

• Document, document, document!

Conducting Effective Workplace Investigations

• What not to do: Some Cases

Disotell v. Kraft Canada Inc. - 2010

• Mr. Disotell was the subject of derogatory sexual comments and innuendo alleging he was homosexual

• Kraft had a harassment policy prohibiting such behaviour

• Mr. Disotell made numerous complaints to supervisor who refused to support a formal complaint and indicated that a complaint could result in termination

• Mr. Disotell went on sick leave, retained a lawyer

• Ontario Superior Court of Justice• Constructive Dismissal - 12 months’ salary (~$44,000)

• Kraft failed to administer harassment policy requiring supervisors to report incidents of harassment to HR

• No serious investigation into alleged harassment

• Kraft failed to interview relevant parties (those named by Mr. Disotell

• Kraft refused Mr. Disotell’s offer to provide particulars

Disotell v. Kraft Canada Inc. - 2010

Elgert v. Home Hardware Stores Limited - 2011

• Home Hardware terminated Mr. Elgert after allegations of sexual harassment by fellow employee

• Alleged incident reported by other employee (not victim) Investigation:

Investigator was a friend of alleged victim’s father Statement not taken from the alleged victim Witness not interviewed Mr. Elgert not given particulars of the allegations

against him

• Court of Appeal of Alberta

• Wrongful dismissal – 2 years’ pay in lieu of notice

• Punitive damages (rare) - $75,000• alleged victim didn’t make a formal complaint

• investigator was untrained and inexperienced with allegations of sexual harassment and workplace investigations

• investigator lacked neutrality because friend of the alleged victim’s father and decided Mr. Elgert was guilty prior to meeting with him

• Mr. Elgert not provided with particulars until 10 days after termination

Elgert v. Home Hardware Stores Limited - 2011

Vernon v. British Columbia (Liquor Distribution Branch) - 2012

• Ms. Vernon had a no-nonsense management style – never a complaint against her and “glowing” performance reviews

• Complaint made that Ms. Vernon’s “unprofessional behaviour” made an employee feel harassed/embarrassed

Investigation

• Interviewed complainant and 7 other employees

• Ms. Vernon not given opportunity to respond to allegations

• LDB offered Ms. Vernon a reference letter in exchange for voluntary resignation – refused

• Ms. Vernon put on unpaid leave for a month and ultimately terminated

• Supreme Court of British Columbia• Wrongful dismissal – 18 month’s notice (~$97,000)• Aggravated damages - $35,000

• Ms. Vernon given no opportunity to respond to allegations• Interview of Ms. Vernon “egregious, shocking and unnecessary” - failed to

consider Ms. Vernon’s clean disciplinary record and positive performance reviews

• Witnesses were yelled at and accused of lying if their answers to questions supported Ms. Vernon

• Punitive damages - $50,000• Offer of reference letter for resignation was “reprehensible”

Vernon v. British Columbia (Liquor Distribution Branch) - 2012