When a manager’s assistant confides in H.R. that she is being sexually harassed; when staff come forward that they are being abused by their supervisor; when a visible minority employee complains of racial slurs, what should the employer response be? Panic? Fire the suspected employees? Or maybe the complainants?
The answer is none of the above. The law mandates that an employer conduct an investigation. And the hallmarks of that process include fairness to all of the parties-the accusers and the suspects; thoroughness of the inquiries; and maintaining a careful record of the investigation.
The courts have come down hard on employers who take shortcuts and botch their investigations through both sins of omission and commission.
In one recent case, the British Columbia Supreme Court upbraided the Liquor Distribution Branch for the unfairness of its investigation against a 30 year store manager with a spotless record who was accused of abuse of staff. Among the many flaws: the Labour Relations Officer in charge of the investigation was biased and had a conflict of interest; the witness list was skewed; the interview with the accused employee was not accurately recorded; the interviews were akin to interrogations; any employee who spoke favourably of the employee was accused of lying; the investigator’s recommendation memo did not give a balanced report of the evidence; and the employer had rushed to judgment.
In another Ontario case, Plester v Polyone, the trial judge was unsettled by the destruction of the original investigation notes; the fact that employees were not interviewed separately and the fact that there was little change between the original and final draft of the report.
Faced with the spectra of unnecessary legal exposure, an employer would be well-advised to find an employment lawyer with solid workplace investigation experience.