Canadian Employment Law: 4. Protecting the employee and the employer during workplace investigations

Employers have a duty to investigate all allegations of harassment and discrimination involving their employees and workplace. Conducting investigations can be tricky. In addition to finding a way to conduct them without infringing on the rights of the employee under investigation it is also your responsibility to ensure the employee is not treated with unfair prejudice as investigation flaws may result in substantial liability against you; the employer.

Since there isn’t a standard protocol for employee investigations it’s incredibly important for employers to take precautionary measures whenever an investigation is required. To help you mitigate your risk, here are four basic principles to help you avoid potential liability:

1. Conduct investigations without bias and use someone with experience conducting workplace investigations. If possible use a third-party investigator, or at the very least use someone who is impartial and is not familiar with the parties involved.
2. Provide the employee under investigation with all of the details regarding the allegations against them and give them an opportunity to tell their side of the story.
3. Gather all of the relevant evidence, interview all witnesses (including the witnesses of the employee under investigation) and keep records of every interview.
4. Take every workplace complaint seriously and take the complaint as truthful, but do not conduct the investigation with predetermination.

Here’s an example of what not to do based on an employee misconduct investigation from Home Hardware, to help you understand the potential risk of a flawed investigation.

Background:

● Daniel Elgert, a shift supervisor at a Home Hardware, was terminated without notice for the alleged sexual harassment of Christa Bernier, another employee.

● Christa Bernier was also the daughter of Elgert’s boss, Norris Bernier.

● Elgert was Christa’s direct supervisor and had received a number of complaints about her performance, due to the fact she was working in the same area as her boyfriend. heir visitation during working hours resulted in delays and blocked aisles. In response to complaints, Elgert relocated Christa to a different area which made Christa and her boyfriend unhappy. In retaliation, Christa told her father about an incident of sexual misconduct that had occurred four months earlier claiming that Elgert had followed her upstairs, bumped her against a table and put his legs between hers making her unable to leave until another employee entered the room.

● Later that year Christa discovers that another employee had a similar incident with Elgert landing on top of her but didn’t file a complaint because she felt that he had tripped.

● Norris assigned an internal investigator with no prior training or experience dealing with sexual harassment complaints to investigate.

● The investigator did not take a written statement from the person who witnessed the incident with Christa, nor did they speak with the other employee who had a similar incident.

● After a preliminary investigation Elgert was suspended.

● At the suspension meeting Elgert was informed he was being accused of sexual harassment but was not provide details of the alleged incident. Elgert asked for clarification several times but the investigator would only respond by saying “you know what you did”.

● Elgert requested for a more thorough investigation but was suspended immediately instead.

● When Elgert’s son (also a Home Hardware employee) became aware of his father’s suspension for sexual harassment he asked the investigator whether there was an investigation. The investigator replied that if he had not been 100% sure his father was guilty he would not have suspended him.

● Following the suspension, the investigator wanted to have a meeting with Elgert to further discuss the allegations. Elgert wanted to meet the investigator with his legal counsel. The investigator later acknowledged that he wanted to meet alone because he was hoping to obtain a confession.

● Elgert was terminated via a formal letter citing sexual harassment and insubordination for failing to attend a meeting with the investigator.

● Elgert pursued action with a claim for wrongful dismissal and defamation.

The Court’s Ruling

At trial and at the Court of Appeal, Elgert was not found guilt of committing sexual harassment and was awarded damages for wrongful dismissal and defamation. Further, they found Home Hardware’s conduct during the process to be harsh, vindictive, and malicious. As a result, Elgert was awarded two years’ pay in lieu of notice, $75,000 in punitive damages and $60,000 for defamation.

How they came to that conclusion:

Based on the investigation process and the conduct of the employer:

1. The investigation was flawed, biased and predetermined as the investigator already believed that Elgert was guilty.
2. The employee was not told about the allegations and he had no opportunity to defend himself.
3. Human Resources was directed to investigate and terminate without cause.
4. Senior Manager and VP of HR were both long-time friends of the employee’s father and were both involved in the investigation.
5. The investigation was conducted internally by someone who was not qualified to conduct it.
6. The investigation was conducted in an accusatory manner and the investigator refused to meet with Elgert’s lawyer in an attempt to receive a confession

The investigation did not consider the motive or credibility of the witnesses.

When will punitive or aggravated damages be awarded?

The Court states that while an employer is entitled to believe an allegation, conduct an investigation that is less than perfect, and make decisions to suspend or terminate employees without being subject to punitive or aggravated damages, they do not have the ability to conduct an inept or unfair investigation or behave in a malicious, vindictive, or outrageous way.

Take the first step to protecting yourself and your business and talk to a legal professional today.

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