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A Review of the Standards of Procedural Fairness in Workplace Investigations
Issues regarding procedural fairness in workplace investigations are on the rise. This is a good time to review standards of fairness and provide investigation tips we often share with clients. 

Employers conduct investigations in a number of different contexts, including Workers’ Compensation incidents, bullying and harassment complaints, and employee misconduct allegations. The level of procedural fairness required in these investigations depends on the type of decision being made. For instance, in a case where an employer is considering termination of employment, the procedure will be closer to the “gold standard.” For a minor issue (for instance, a warning letter for lateness), the procedural requirements can be less stringent. 

What is the “gold standard” of procedural fairness for investigations? It requires, among other things: 
  • The right to notice of allegations and notice of the investigation process
  • The right to oral or in-person submissions before the investigator
  • The right to disclosure of information the investigator is using
  • The right to present evidence (for instance, witnesses)
  • The right to seek legal advice
  • A speedy resolution
  • An impartial decision maker
 When faced with conducting a workplace investigation, we recommend the following:
  • Receive the complaint (or observe the incident)
  • Decide who should be in charge of the investigation (someone who is unbiased; in certain circumstances, it is advisable to hire a third party investigator)
  • Review any relevant policies and follow applicable procedures (for instance, a Bullying and Harassment Policy)
  • Conduct interviews
  • Ensure there is a shop steward present in a unionized environment
  • Ensure the presence of more than one employer representative in interviews (or using a third party investigator)
  • Take careful notes
  • Inform participants of confidentiality
  • Put allegations to the respondent and provide them with an opportunity to respond 
In conducting interviews, investigators should: 
  • Ask open-ended questions
- Incorrect: “Billy harassed you, right?”
- Correct: “How would you describe your interactions with Billy in the workplace?”
  • Ask Who, What, When, Where, Why, and How questions
- Get specifics “What words did he use?”, “What time did this occur?”
- Ask if there is any other evidence or any other witnesses
  • Consider what evidence you are allowed to use and what evidence cannot be used (for instance, evidence obtained in violation of privacy laws)
  • Consider the evidence
- If necessary, go back and conduct further interviews
 
Finally, to conclude an investigation, we recommend:
  • Making a Decision
- Writing down the reasons
  • Determining the consequences
- General: amending/creating policies, training
- Determining the specific discipline for the employee – warning, suspension, removal of duties, discharge
- Implementing work-split arrangements may be required where two employees cannot continue working together
  • Communicating the outcome to affected parties
- Discipline/discharge meeting with employee (and shop steward)
- Letting the complainant (if any) know that the matter has been investigated, the general outcome of investigation, and that appropriate corrective measures have been taken
  • Finalizing the investigation notes and keeping the file confidential
The Labour and Employment Group at Lawson Lundell LLP has experience in all types of workplace investigations. We can assist with:
  • Developing investigation protocols
  • Drafting bullying and harassment policies
  • Conducting workplace investigations
  • Training managers and supervisors in investigation procedures
  • Responding to complaints including union grievances
 
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Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits. 

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