Workplace investigations are complex and require guidance from experienced counsel. The recent decision in Western Forest Products Inc. and United Steelworkers 1-1937 demonstrates how quickly an investigation can fall off the tracks when the investigator lacks experience and training.
In this case, two employees were investigated for alleged misconduct and disciplined at the conclusion of the investigation. They grieved the result arguing the investigation was flawed. The arbitrator agreed indicating it was an “investigation by ambush” and the employer had not followed its own policies or basic rules of procedural fairness.
Instead of helping the employer, the investigation substantially weakened the employer’s case and resulted in the employer paying three (3) days salary to each of the Respondents and expunging any record of discipline from their file.
Deficient Investigation
The investigator made a number of errors including the following:
- Not following the steps outlined in the employer’s harassment policy regarding a formal investigation.
- Not providing a copy of the written complaint to either Respondent
- Not advising the Respondents they were participating in an investigation interview
- The investigator did not put all of the Complainant’s allegations to the Respondents
- The investigator failed to ask any if there were potential witnesses or pursue further lines of inquiry when the evidence supported such action
- The investigator did not attempt to locate any documents or other evidence to corroborate either the Complainant or the Respondents’ version of events
What can we learn from Western Forest Products?
Investigations are about finding the truth, not searching for evidence to support a certain outcome. To this end, they must be balanced, unbiased and thorough.
- After you determine an investigation is required, assess whether you have qualified investigators available in-house or whether you should retain an external investigator.
- If you are conducting an internal investigation, ensure the investigator is aware of his or her mandate and develops an investigation plan before they start interviewing any witnesses. This includes determining how the allegations are going to be communicated to the responding parties.
- Asking inexperienced or untrained staff to conduct a complex investigation is a recipe for liability. Ensure your investigators are trained and have a basic level of competency.
Conclusion
An employer’s failure to properly conduct an investigation can lead to management not having the right information to make a decision, and result in unnecessary liability and legal costs. It is important to consult competent legal counsel when faced with a workplace investigation.
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