Richard B. Johnson
While it sounds very formal and complex, a workplace investigation is actually a relatively straightforward process. This is not to say that it is easy by any means, but it is quite a rational approach to take when serious misconduct may have taken place at work.
Briefly, a workplace investigation is a process through which an employer or outside investigator gathers and assesses evidence about alleged misconduct in the workplace. The alleged misconduct that can trigger an investigation can include the following common issues (but there are many more):
- Violations of the BC Workers Compensation Act such as bullying and harassment;
- Serious violations of organizational policies or procedures;
- Complaints brought forward about a worker which may or may not include some of these issues listed;
- Alleged breaches of professional regulations or Codes of Conduct; and/or
- Claims of discrimination.
Depending on the alleged misconduct, an investigation is often legally required. This is particularly the case when dealing with bullying and harassment under the BC Workers Compensation Act and, practically, an investigation should be undertaken before dismissing an employee for just cause due to misconduct.
For example, as of 2013, BC employers are required to have a bullying & harassment policy in place which provides a process for raising complaints about such workplace misconduct.
Once an employer knows, or from the circumstances “ought to know” of serious alleged misconduct like those mentioned above, this will often trigger a duty to investigate the issue(s).
For several reasons, it is important to move quickly to investigate issues once alleged misconduct occurs. For example:
- If the alleged misconduct may cause physical or psychological harm to those in the workplace, the employer is obligated to immediately deal with that potential harm and ensure it stops;
- If an employer delays investigating for a long period of time, it may become unfair to then do so well after the alleged misconduct;
- Likewise, if an employer does not investigate misconduct, that employer may be found to have “condoned” or accepted that misconduct by silence. This is also called condonation; and
- It is also critically important that employees have a fair and clear process to raise complaints of workplace misconduct, and that they see the employer following that process promptly. Otherwise, employees will lose faith that the employer will take issues seriously and act on them, which can have serious ripple effects in terms of workplace culture, absenteeism, medical claims, legal claims and difficulties retaining and keeping talent.
The investigation can be undertaken by someone inside the organization who is not involved in the alleged situation (commonly this is a manager or human resources professional). However, in many cases, it is preferrable to have an unbiased “outside” third party investigator called in to perform the investigation and report back to the employer. In our work, Ascent Employment Law is often called in to assist with investigations and Trevor Thomas and Richard Johnson both hold Advanced Certificates in Workplace Investigations from Osgoode Hall Law School.
The investigation process typically involves the following steps:
- Gathering evidence from all relevant people including the complainant, the alleged perpetrator (called a respondent) and any witnesses;
- The investigator will also review any relevant laws, policies, procedures, Codes of Conduct, documents, emails, security footage or other records as part of the investigative process;
- Once all of the evidence is gathered, the investigator assesses the evidence on a “balance of probabilities”. This balance of probabilities standards assesses whether there is more than a 50% likelihood that something did or did not occur. For example, if the evidence on an issue indicates that it is more than 50% more likely that misconduct took place than not, then the investigator will find that the allegation is substantiated (i.e. that the misconduct took place). This assessment is done for each of the allegations; and
- If misconduct is found to have occurred, the investigator will then include those findings in a report to the employer and may or may not include recommendations on next steps for the employer’s consideration.
Once the investigator’s report is provided, this usually ends the investigator’s work. However, one of the most important steps in the process is still to come: action on any misconduct!
If misconduct is found, it is very important that the employer take action on that misconduct. Otherwise, the investigation and the employer’s policies are all useless.
Ascent frequently assists employers to assess findings of misconduct and provide advice on next steps including training on relevant issues/policies and/or discipline up to and including termination for just cause.
The importance of workplace investigations in fostering a physically and psychologically safe and respectful environment cannot be overstated.
Workplace investigation can help to fairly address workplace issues, foster a sense that there is justice and protection in the work environment, and ultimately provide a safer workplace while minimizing legal risks.
This blog provides a general overview and legal advice should be sought for specific situations. Please contact us to discuss these issues in more detail. We want to help!