With recent developments in workplace harassment and human rights legislation across Canada, courts and tribunals are hearing an increasing number of employee complaints alleging everything from employment rights violations to wrongful dismissal. Like any burgeoning trend in the HR law realm, this one has caught many employers by surprise.
Most CEOs find themselves in a precarious position when hauled before a judge or human rights tribunal for a simple reason: they've failed to conduct a proper workplace investigation in response to employee allegations of wrongdoing. Employers who forego investigations outright could be deemed to have condoned the alleged misconduct and be held liable.
I'm seeing cases where flawed investigations have resulted in settlements or awards of more than $100,000. While those hefty payouts are still rare, the incidence of flawed workplace investigations is not.
Here are five important questions you should ask before attempting an internal workplace investigation.
Do we have the expertise to properly manage the process?
Taking a DIY approach to a workplace investigation is like fixing the plumbing in your house. In theory, it's not difficult, but odds are you'll trust a trained professional to handle the job. The same applies when investigating an issue in the workplace. Busy CEOs and their staff often lack the knowledge of the law to properly investigate issues. Do you know what a judge at a tribunal would ask? This is why it's crucial to assign the task to either a trained in-house HR person with extensive experience handling workplace investigations, or let an employment lawyer take the reins. Cutting corners by trusting the process to an untrained investigator, can be very costly.
Are we setting realistic expectations?
Understand that you may already be in violation of human rights and or workplace-related legislation if you lack documented complaint management processes, standards for how a workplace investigation will be conducted or even human rights training for your staff. In that case, your position will be much harder to defend and your chances of paying out a hefty settlement or fines are far greater. Budgeting for legal fees (see below), possible fines or even a settlement in certain cases will help ease the financial shock if your position is, indeed, indefensible. Understanding that you may not win is the first step to mitigating the investigation's impact.
Can we afford to do it ourselves?
Do you want to pay a long-service employee who makes $50,000 two years' worth of salary? Because in cases where long-term employees are dismissed and launch a human rights application or wrongful dismissal lawsuit those are the damages you could face, not to mention the legal fees involved. Sometimes a proactive professional approach can be more cost effective. While lawyers' fees can easily top $10,000 for a workplace investigation, if your in-house team is inexperienced in investigations and mismanages the process, it could cost five times that amount. Do the math and weigh the costs before deciding how to handle your investigation.
Do we have time to properly manage the investigation?
It will typically take six weeks or more to complete and will be intrusive, resulting in inevitable workplace disruptions and possible damage to staff morale—at least temporarily. Carefully manage internal communications around the investigation before it begins, and explain how the process will unfold. Keep staff updated throughout the process to curtail the spread of engagement-killing rumours. And whatever you do, don't bury your head in the sand. Time-pressed executives often forget that conducting an investigation in a consistent and timely manner is a prerequisite to guaranteeing the credibility of their findings.
Do we really understand what procedural fairness means?
Even if someone is accused of discrimination or some other egregious workplace offence—think theft or outright insubordination—they still need to be treated as innocent until proven guilty. They can be placed on non-disciplinary leave while an investigation takes place, but suspension without pay or outright dismissal isn't an option. Neither is making their lives difficult during the process, even if you think proving just-cause for dismissal is a slam dunk. A company accused of mistreating an employee during the investigation could face additional damages for their actions. Remember, too, that investigations are a two-way street. An employee accused of bad workplace behaviour must have the opportunity to review and respond to the allegations against them. If you think emotions or procedural ignorance will stop you from taking an innocent-until-proven-guilty approach, leave the investigation to an independent third party such as an employment lawyer.
Laura Williams is an employment lawyer and founder of Williams HR Law in Markham, Ont. She has more than 15 years experience providing proactive solutions to employers aimed at reducing workplace exposures to liability and costs that result from ineffective and non-compliant workplace practices.
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