Experienced investigators expect the unexpected during the course of an investigation but usually close the file and move on once a determination is made and the report is written.
However, one wrongful dismissal case recently commenced in Hamilton shows that if a party is unhappy with the outcome of an investigation, they may “attack” the investigation process as part of an overall litigation strategy. The lawsuit, started by three former employees of the City of Hamilton who were fired after participating in an investigation as “respondents”, raises several interesting issues regarding what is acceptable investigation practice.
In the claim, three former senior managers allege that they were terminated as a result of a negligent investigation and are seeking damages in excess of 6 million dollars from the investigator and the City of Hamilton. The City retained the external investigator after receiving a complaint from an employee who was a standards and licensing inspector in the City’s taxi inspection office. The employee alleged that two city councillors threatened his employment and physical well being and also that the managers subjected him to harassment including differential treatment and made unfounded accusations that he was belligerent.
The incident that precipitated the alleged harassment occurred when the employee reported that a taxi had electrical issues and could not be licensed until the issues were resolved. A City Council member, escorted by a member of management, went to the taxi inspection office where the following confrontation occurred:
Councillor: “...I do have a problem with a [taxi] owner calling me to tell me the barbeque that he is picking me up to go to will be late because he has to go down to City Hall and deal with the asshole in the taxi inspection office and that he is so pissed off that he wants to come down here with a f***ing bat.”
Employee: “Frankly I am not concerned that he is pissed off.”
Councillor: “Well you f***ing well better be concerned when I’m f***ing pissed off because I’m your f***ing boss, I can fire your f***ing ass or if I can’t fire your f***ing ass I’ll have you f***ing turfed out of this f***ing office so f***ing fast it will make your f***ing head spin...”
Once the external investigator concluded the investigation, the City terminated the managers.
In their Statement of Claim, the managers allege that:
- The conclusions in the investigator’s report were the product of a negligent investigation;
- The investigation was biased (however no basis was given for allegation of bias);
- The investigator interviewed each manager on only one occasion and had a follow-up meeting only to report conclusions;
- The investigator did not inform the managers that they were under investigation;
- The investigator “did not allow” the managers to take notes during the interview nor did she provide written summaries of the interviews or of her conclusions with respect to the managers.
In her Statement of Defence, the investigator pleads that it was her mandate to determine whether any of the individuals named in the complaint had breached the City’s Personal Harassment and Prevention Policy. The investigator further pleads that she did the following at each interview including:
- Introduced herself as the investigator and explained to the witness that her role as investigator was as an impartial fact-finder;
- Advised the witness that her mandate did not include recommending or commenting on discipline or sanctions;
- Advised the witness or confirmed with the witness that she or he was a respondent in the complaint, where appropriate;
- If the witness was a respondent in the complaint, detailed the specific allegations that the employee had made against them;
- Advised the witness that she or he could have representation present if desired;
- Advised the witness of the need to maintain confidentiality;
- Advised witnesses and their representatives that they may not take notes for confidentiality reasons but that she would read them her notes at the end of the interview to confirm accuracy;
- Took detailed notes during the interview. At the end of each interview, she read out her notes verbatim, gave the witness an opportunity to clarify and correct her notes, and sought clarification on unclear issues;
- Provided the witness with her business card and requested that the witness contact her with additional information or documentation; and
- Advised each witness that she would send her report directly to the City as required by the Policy.
As the lawsuit has just commenced we cannot report on the outcome. On our reading of the Defence, it would appear that the investigation was conducted properly, although we obviously do not know all the facts. However, the mere existence of the lawsuit is a reminder to employers of the need to ensure that their workplace investigation processes are defensible and that they are cautious in terms of who they choose to conduct investigations on their behalf.
LESSONS LEARNED FROM THIS LAWSUIT:
- If relying on an external investigator, make sure you understand the process she or he is going to follow, if it is not your own.
- Make sure your external investigator is experienced and qualified.
- If relying on an internal investigator, make sure they are properly trained and are following your workplace investigation policy.
- If you don’t have such a policy, create one so that all parties know what to expect once involved in the process.