conducting lawful workplace investigations: when ignorance isn’t bliss - december 10, 2013 sarah...

Conducting Lawful Workplace Investigations:When Ignorance Isn’t Bliss - December 10, 2013

Sarah E. Graves, Sonia Regenbogen, Christina HallHeenan Blaikie LLP

Agenda

• Introduction and Overview

• Preparing for an Investigation

• Hot Topics

– Social Media and Privacy– Privilege– Whistleblowers– Drug & Alcohol Testing– Latest Developments

• Conducting Workplace Investigations

Agenda (Cont.)

• Developing Effective Interview Skills

• Key Issues in Different Investigations– Human Rights– Investigation of Serious Allegations– International & Cross-border Investigations– Health and Safety

Agenda

• Reaching Conclusions and Reporting

• Questions & Answers

Preparing for an Investigation

When is an Investigation Necessary?

• Human rights legislation– Duty to provide discrimination-free workplace

– Do you need “a complaint?”

• Termination for just cause

• Policy violation/compliance issue

• Criminal or regulatory wrongdoing

• Occupational health and safety– Accident, bullying, or violence

Planning the Investigation

• Decision-makers are increasingly scrutinizing investigations

• Don’t expect perfection, but reasonableness– Training?– Bias?

• Planning is essential

Planning the Investigation (2)

Big Picture Items:

•Identify the allegations:– What specific issues are raised?– What laws are implicated?– What policies and practices are implicated?


Example Complaint:“Mr. L looks at me and says angrily, ‘you want a day off?’ I calmly say, ‘Yes’. He forcefully grips my left arm below the elbow, twisted it and jerked it to apply pressure, to throw me out of the bakery, [while] screaming irately, ‘get out!’”

No identification of workplace violence issue

Recommendation: “Mr. L should be counselled on how to handle this better.”


Big Picture Items (Cont.):

•Special skills required?– Forensic accountant, IT specialist, etc.


Big Picture Items (Cont.):

•Internal or external investigator?

•Who will oversee the investigation?– In-house, external, or even independent

counsel?

•Collective agreement constraints?

Evidence and Privilege:

•Privilege takes planning

– Critical role of counsel, in-house or external

•Identify the evidence/information you will need– Oral?– Physical?– Created?



Evidence and Privilege (Cont.):

•Preservation of evidence– Litigation hold to ensure documents not destroyed– Understand document retention policy

•Beware spoliation of evidence allegations– Remedy = adverse presumption

•Ensure safe storage of evidence


Parties and witnesses

•Confidentiality

•Order of interviews

•Location of interviews

•Administrative suspensions? (with pay)

•Reprisal

Key Issue: Unions and Investigations

• Is the investigation procedure incorporated into the collective agreement?– Directly, referentially, LOU?

• Necessity of shop steward’s participation?– Different for complainant, respondent, witnesses

• Conflict when both complainant and respondent are represented by the same union

Who Should Conduct the Investigation?

• Internal– Minor issues that can be resolved without

discipline or sanction– Policy violations that won’t result in liability

• External– Violations of law or policy exposing company

to civil or criminal liability– Particularly sensitive issues– Complaint involves senior management

Role of In-House Counsel?

• As investigator– Can in-house counsel be perceived as

completely objective and independent?

• As advisor to external investigator– Someone who “knows the ropes”

• As advisor and counsel to internal investigator– Groundwork for privilege

Hot Topics

Privacy & Social Media

• People love social media– 20% of time on PCs spent on social media– 30% of time spent on mobile devices is spent

on social media– Users spend over 700 billion minutes per

month on Facebook


• Key Issues– Are you in a jurisdiction with privacy

legislation? (Federal, Alberta, British Columbia, Quebec)

– No privacy legislation• Reasonable expectation of Privacy?• Policy?


• Public Sector?– Ontario

• Freedom of Information and Protection of Privacy Act

• Municipal Freedom of Information and Protection of Privacy Act


• R. v. Cole:– If personal use of work computer permitted, then

reasonable expectation of privacy• Policy may diminish, but not erase, expectation

– Was subjective expectation of privacy objectively reasonable? Info near “biographical core”?

– Charter-bound employers: reasonable basis?– Private employers: some basis? (not 50+1)


• Common Law Privacy Tort– Jones v. Tsige 2012 ONCA 32

• Limited application:– “…deliberate and significant invasions of personal

privacy.”– Invasions of personal privacy which would potentially

qualify are limited and would include matters such as “financial or health records, sexual practices and orientation, employment, diary or private correspondence.”


• Employers cannot eliminate an employers right to privacy; but they can limit it.

• Social Media Policy– Educates employees about appropriate usage– Protects legitimate employer interests– Provides a basis for discipline


• Electronic Monitoring v. Employee Privacy

• 4 Key Questions:– Is there a legitimate problem that needs to be addressed?– Will monitoring social media use address the problem?– Have less invasive ways to address the problem been

considered and proven effective?– Are monitoring activities conducted reasonably?

Evidence issues and Social Media

• Courts have refused to admit social media pages as evidence if they are not properly authenticated

Solicitor-Client Privilege

Three-Part Test:

•Communications concerning…1. Legal advice;

2. Where client intended communication to be confidential; and

3. Communication must not have had an illegal purpose

Solicitor-Client Privilege (2)

Necessity of legal analysis and opinion?•R. v. Bruce Power (OCA)

– No “legal strategy/opinion” in internal accident report

– BUT fact prepared at request of ext. counsel retained right after accident established S-C privilege

– Also highly prejudicial items in report indicated intent that report be covered by S-C privilege

•Compare, Re North Bay General Hospital (Arb)– Absent advice, fact-finding conducted by person who

happens to be lawyer does not create S-C privilege

Litigation Privilege

Two-Part Test:

•Protects documents and work product…1. Prepared for the dominant purpose of

litigation; and

2. Where litigation is pending or reasonably anticipated

Litigation Privilege (2)

“Dominant purpose” of litigation?

•BMO v. Tortora (BCSC)– Alleged fraud; external counsel retained fraud

examiner to investigate; findings led to dismissal

– Employer refused to disclose report, claimed privilege

– Court: litigation privilege protects only those documents prepared after decision to terminate

Litigation Privilege (3)

“Dominant purpose” of litigation? (Cont.)

•Re Peel District School Board (Arb)– Teacher suspended during investigation when guilt

materialized; investigation continued for two years

– Union demanded disclosure of investigation notes

– Arbitrator: while litigation reasonably anticipated after suspension, dominant purpose of notes were for investigation, not litigation

Waiver of Privilege

Inadvertent Waiver vs. Judicial Fairness

•Fernandes v. Marketforce Comm. (Ont. SCJ)– Employer accidentally copied employee on

e-mail to lawyer about its desire to fire her– Employee claimed wrongful dismissal as a result– Motions Judge & Appeal: E-mail was S-C

privileged, but it “affected state of mind” and was “catalyst” for wrongful dismissal action

– Unfair to deny remedy

Whistleblowers

• Private Sector: No general protection for whistleblowers in Canada

• Public Sector: Public Servants Disclosure Protection Act

Whistleblowers

• S. 425.1 of the Criminal Code protects employees from retaliation for whistleblowing re: statutory compliance

• Reprisal

• Others– Employment Standards– Environmental Protection Act– Publicly traded companies re: securities fraud

Drug and Alcohol Testing

• No explicit duty, or authorization, to test in any jurisdiction in Canada but generally speaking, the law has upheld:– Post-incident testing– Reasonable cause testing– Return to work following treatment testing

• CAUTION - Pre-employment and random testing difficult to uphold in most cases

Drug and Alcohol Testing (2)

• Post-incident – best practices– Typically safety sensitive positions– Incident caused injury, fatality, significant

property damage, etc. or “near miss”– Only if employee’s actions could have played

a role in the incident• E.g. No testing if clear mechanical failure

– Ensure testing safeguards are in place


• Reasonable cause – best practices– Typically sensitive positions– Have a team of supervisors/managers that

are trained to conduct the assessments– Assessments done by a team if possible– Checklists, forms– Ensure testing safeguards are in place


• Return to work following treatment – best practices– Return to duty test generally acceptable– Further follow-up testing as per medical

recommendations, not employer choice– Consequences of further positive test


• The DO’s– Use reliable and experienced lab, MRO, SAP– Have clear accommodation procedures– Lead workplace training and advise of support

mechanisms (EAP, etc.)

• The DON’Ts– Adopt US policies without tailoring them– Overreach with testing– Require automatic termination for a positive test

Case Law Developments

Adjudicator Reliance on Investigations

•Tribunal may rely on investigation finding that some or all allegations unsubstantiated

– Rule 19A summary dismissal hearing– Hoyes v. Woodbine, 2011 HRTO 578

Case Law Developments (2)

Adjudicator Reliance on Investigations (Cont.)

•Tribunal may also accept investigation report into evidence (on consent), removing need for direct evidence

– Newton v. Toronto (City), 2010 HRTO 1023– City investigation took 6 months, 19 witnesses– Relying on report, Tribunal held 1 day hearing

focused on remedy

Conducting Workplace Investigations

The Investigation Process

• General indicia of a sound investigation process: was the investigation…

…prompt?

…thorough?

…fair/appropriate in the circumstances?

• Was the respondent given enough information and opportunity to respond? –Beware “The Element of Surprise”

The Investigation Process (2)

Investigator’s Responsibilities:

•Fair, neutral, open minded fact-finder– Job is to gather facts, not draw conclusions

•Thorough, organized– Hallmark of a careful investigation is the file– Suggestion: keep running log of all steps taken

•Professional, direct, responsive

•Know and follow the investigation policy!


Taking the Complaint:

•Define the complaint / incident– What is being alleged?

•Unpack the complaint / incident– What specific components/issues need to be

investigated?


Taking the Complaint (Cont.):

•Meet with the Complainant and get sign off on his or her complaint

– No editorializing!– Use precise / accurate language– Record all relevant facts and dates

•Obtain list of proposed witnesses– Who has what evidence and why?


Litigation Holds:

•Review document retention policy

•Work with IT to ensure no documents are lost


Establishing Privilege

•Deputizing memo / retainer letter– Use language indicating advice and/or analysis

•Document protocol– Mark documents ad privileged– How to handle drafts, summaries, reports

•Generating work product

•E-mails


Collecting Physical Evidence:

•Collect all documents that may be relevant:– Signed acknowledgement of policy/training– Notes/reports of prior incidents– Notes kept by Complainant or others– Video surveillance, e-mails, photos/social media

•Store in centralized, organized, secure location


Collecting Oral Evidence:

•Consider interview time/location/atmosphere– Maximize comfort to minimize reluctance– Goal is to build rapport with interviewee

•Allow sufficient time for interviews– Typically longer than initial estimate


Collecting Oral Evidence (Cont.):

•Outline purpose and process of interview

•Address protection from retaliation

•Confidentiality

•Witness statement


Taking Notes:

•Tell interviewee to watch your pen to gauge pace– Do not let pace/note-taking interfere with listening!– Write legibly

•Record what witness says – do not paraphrase– Do not include commentary or impressions

•Sign and date notes

•Avoid multiple sets of notes per interview


Taking Notes (Cont.):

•If type up notes afterwards:– Do not add or embellish content– Do transcribe shortly after interview, and note

date the transcription took place– Do not destroy the original interview notes!

•Beware audio recording’s chilling effect

Consequences of Flawed Investigations

• Key Mistakes!– Failure to act at all or take it seriously– Failure to train investigators– Failure to plan– Poor file– Not prompt and/or thorough– Not opportunity to respond– Failure to keep complainant informed– No follow-up/decision not implemented

Consequences of Flawed Investigations (2)

• Impair or prejudice ability to establish…– Just cause for termination / discipline– Due diligence under OHSA– Due diligence under Human Rights Code

• Consequences include…– Aggravated, punitive, or Code damages– Penalties from Ministry of Labour under OHSA– Reinstatement in unionized workplaces

• Embarrassing reported decision!

Confidentiality

• Dangerous claims

• Confidentiality cannot always be guaranteed– Business/investigation needs may override– Explain information shared only on “need to

know” basis

• Ensure witnesses sign confidentiality

agreements

Avoiding Reprisal Claims

• There can be no merits to the complaint, but still merits to the reprisal!

• File retention:– After investigation, gather any/all related notes,

documents, etc. and place in file

• Explain consequences of reprisal to managers

Developing Effective Interview Skills

Practical Interview Skills

• Avoid script, but prepare list of specific items looking for from interviewee– Do not conclude interview before reviewing

• Control the pace and listen actively

Practical Interview Skills (2)

• Funnel or Pyramid Technique– Open Phase– Clarification Phase– Closing the Door

• Active listening

• Assessing credibility


Open Phase:

•Open-ended questions

•Learn all relevant evidence the witness has– Encourage the witness to talk

•Summarize the answer so witness can give you the facts that might have been left out


Clarification:

•Get the details – W-5

•Try not to interrupt

•React neutrally at all times

•Explore basis for interviewee’s conclusion


Close the Door:

•Get the final answer

•Listen to the witness

•Exhaust the subject?

•Is there anything else?

•Have you now told me everything you recall about…?


• Before closing the interview…:– Confirm details witness has provided– (Optional) Review notes with witness– Confidentiality agreement?

Handling Difficult Witnesses

• Stay calm/neutral to avoid increasing hostility

• Avoid badgering questions– BUT do not shy away from questions either

• Make it clear that you will end the interview and proceed in absence of his/her evidence if:– Witness is highly argumentative– Witness is obstructive– Witness refuses to cooperate

Handling Difficult Witnesses (2)

• Listen actively and neutrally to difficult witnesses’ version of events– Listen for inconsistencies and challenge based

on information already obtained

• Do not accept “I would never do that”– Ask what actually happened

• If witness avoids a question, make a note and come back to it later

Other Challenges

• What if the interviewee wants a lawyer?

Other Challenges (2)

• What is interviewee cancels or withdraws participation?– Explain role of investigation in company’s legal

duties and that findings may be made without his/her input

– Reaffirm protection from reprisals

Other Challenges (3)

• The lying employee– If Respondent, answer is clear– If witness or Complainant, consider seniority

(fiduciary?) and impact on conduct of investigation

• Remember, no reprisal for having complained or participated in investigation only– No protection for lying throughout same!

One Size Does Not Fit All:Key Issues in Different

Investigations

Human Rights Investigations

• Statutory duty to investigate allegations of discrimination and harassment– Failure to do so will itself result in Code liability

• Employer responsibilities– Policy/complaint procedure– Training– Serious, prompt, sensitive, reasonable investigation– Resolution: “healthy work environment”?

Human Rights Investigations (2)

• Harassment/discrimination investigations call for “softer” skill set– Purpose often tied to damage control and

maintaining employee morale– Witnesses may be reluctant to participate as

complaints involves managers

• Due diligence and vicarious Code liability

Just Cause Investigations

• Termination for just cause– “The capital punishment of employment law”

• Employer must properly investigate:– To prove misconduct actually occurred; AND– Rebut allegations that termination in bad faith

Just Cause Investigations (2)

• Just cause investigation can call for a range of “hard” skill sets depending on allegation, e.g.:– Theft, fraud, criminal conduct– Sexual harassment, inappropriate relationship– Policy violation, conflict of interest– Negligent derelict of duty

• Closer the allegation to criminal conduct, more vigorously courts scrutinize the investigation

Fraud Investigations

• Purpose of fraud investigation:– Determine extent of loss– Stem future losses– Recover funds– Build case for just cause

• “Look below the ice” and expect the worse

• Beware: premature accusations can lead to destruction of crucial evidence

Fraud Investigations (2)

• Role of Forensic Accountant– Independent/unbiased– Where fraud suspected, can investigate under

guise of internal control evaluations– Expertise in conducting investigation with criminal

proceedings in mind (protecting evidence)– Expertise in giving testimony, writing reports


• When to terminate for fraud?– Strong, defensible conclusions in forensic report– Employee admits to allegations

• Given implications, courts will demand:– Proof on higher degree of probability– Evidence of intent, deception or deliberate scheme– Employee given a chance to respond– Thorough investigation of all given explanations


• What if participation in fraud not directly established?

• Consider termination for cause based on:– Breach of company policy– Dishonesty (especially if during investigation)– Breach of trust/revelation of character

• Bottom line: “can they ever be trusted again?”


• Impact of Police involvement– Relinquish control of investigation; lose ability to

investigate and resolve matter discretely– Evidence seized– Workplace disruptions– ** Malicious prosecution risk if exculpatory

evidence somehow withheld or overlooked

• Query: when should Police be contacted?


• Do not threaten criminal proceedings!– Criminal Code s. 346 (extortion)– Pate v. Galway-Cavendish, 2011 ONCA 329

• Risks of investigating fraud– Malicious prosecution actions– Punitive/aggravated damages– Intentional infliction of mental suffering– Invasion of privacy

International and Cross-border Investigations

• Facilities in more than one jurisdiction

• Among the most challenging investigations

• Not business as usual

• Special circumstances

International & Cross-border Investigations

• Privilege– Laws re: privilege vary significantly from

country to country– In-house counsel and foreign lawyers

International and Cross-border Investigations

• Privacy Considerations– In Europe privacy often viewed as

fundamental right; criminal liability e.g. France


• Language Issues?– Translation

• Consult local counsel?– Time lines– Local law


• Data Transfer and Personal Data

• Conducting employee interviews

• Blocking statutes– Prohibit export of information requests that

are tied to foreign legal proceedings– Exceptions through Hague Convention

Health and Safety

• Inspectors - routine regulatory compliance– Powers of inspectors; issuing orders

• Power to recommend prosecution– For any contravention or failure to comply with

OHSA and regulations or failure to comply with MOL order

– No requirement for an accident or injury – One year limitation period

Health and Safety (2)

• Preparation is key. An Accident Response Plan accounts for:– What typically happens in the aftermath of an

accident– Who you will have to deal with– What your organization’s (and management’s)

legal rights and obligations are– Key risk management strategies


• Key Accident Response Plan Elements:– Immediate steps (medical, preservation of

scene, notice to regulator)– The need for an accident coordinator– Cooperation but not self-incrimination– Shadowing the MOL investigation– Dealing with warrants


• Key Accident Response Plan elements:– Dealing with document and interview requests– Retaining experts and outside counsel– Dealing with media– Responding to orders


• Detailed internal investigation– Internal investigation report can be protected

by solicitor-client or litigation privilege

• Expert assistance expert reports – required?

• Statements from witness to events– Ask to be present for interviews

• Statements from supervisors, managers– Red flag


• If a regulator arrives with a search warrant:– Managing the process– Inspect warrant, copy– Observe and make detailed notes of warrant

execution

Reaching Conclusionsand Reporting

Concluding the Investigation: Saying When

• Is the question answered?

• Satisfied that investigation is…– Procedurally defensible?– Substantively defensible?

Credibility Determinations

• Does the interviewee have…– Direct or indirect knowledge of matter?

– Any motive to misrepresent information?

• Look for:– Contradictions with own or other versions of

events

– Changes in story, no matter how minor

– Methods to independently verify story

Credibility Determinations (2)

• Don’t underestimate “gut” reaction!

• Your “gut” may pick up on subtle things like…– Body language– Eye contact– Hesitation in delivery

• Above all, does the person’s story make sense?

Investigation Report

Components:

•Executive summary

•Background to complaint

•Overview of investigation process– aka “methodology”

•Allegations and findings

•Conclusion

•(If mandated) Recommendation

Investigation Report (2)

Best Practices:

•“Just the facts”– No opinions– No recommendations, unless mandate for

•Inconclusive?

•Assess each allegation separately

Investigation Report (3)

Best Practices (Cont.):

•Clearly state how interviewee came by his/her knowledge of matter

•Be sure all relevant evidence is considered

•Keep your audience in mind

Common Mistakes in Report Writing

• Omitting reference to evidence because of view that not relevant

• Forgetting to “show your work”– Connect each dot for the reader

• Letting value judgments opinions infect analysis– e.g. “Helena is an admitted cocaine user;

therefore it’s clear that…”

Common Mistakes in Report Writing (2)

• Over-emphasis on similar fact evidence

• Over-emphasis on character evidence– Red flag for evidence of bias or prejudgment

• Acknowledge existence of both, but let facts discovered in this investigation speak for selves

Questions?

Thank You!

Sarah E. Graves, Partner

[email protected]

Sonia Regenbogen, Partner

[email protected]

Christina Hall, Associate

[email protected]

conducting lawful workplace investigations: when ignorance isn’t bliss - december 10, 2013 sarah...

Documents

investigation necessary

investigation procedure

big picture items

independent counsel

specific issues

internalminor issues

external investigator

example complaint