Workplace investigations: The importance of getting them right
Workplace investigations can make headlines. Everyone has heard stories about “bad" companies — ones where issues that should have been addressed weren't.
Where things went wrong is often traced back to the moment the complaint or concern was raised. It may have been an issue that was observed in the workplace. It may have been a written formal complaint or an informal oral complaint, or perhaps it was an anonymous complaint. No matter how the employer becomes aware, once they are, the first step is to assess the nature and seriousness of the concern. Because much is at stake based on that determination.
When are workplace investigations needed?
Workplace investigations are the appropriate response to a wide range of employee misconduct or widespread workplace problems, including:
- Poor employee performance
- Misuse of employer property
- Harassment or violence
- Prohibited use of drugs or alcohol
When employers become aware of a workplace concern, it's important to assess the situation.
The importance of employers' investigation practices
The quality of an employer's investigation practices impacts their reputation. Done well, they are seen as a competent, responsible employer that took action to protect the workplace. On the other hand, when those investigations are done poorly (or not at all), that same company may be viewed as an incompetent or indifferent employer that allowed workplace problems to fester.
Internal investigations are also key to limiting legal liability. Investigations may be a requirement under legislation, the common law, or the employer's own policies. A failure to conduct a proper investigation can undermine an employer's legal defences if its actions to resolve a problem are challenged.
Fortunately, there are legal research tools like Practical Law Canada that can help counsel guide employers through the complex and critical aspects of conducting an internal workplace investigation.
What does a good workplace investigation look like?
A good investigation is crucial to an employer's reputation and their employees' morale — not to mention from a legal liability standpoint. It's important to get it right at the outset. Regardless of the issue, proper investigations have many similar elements, which may include:
- A competent, impartial investigator with a clear mandate
- Properly established legal privilege, where necessary
- Preservation of key evidence
- Thorough interviews of relevant witnesses
- A clear report summarizing investigator findings and recommended actions
Knowing how and where to begin is often the most challenging — yet vital — step.
Be ready for any workplace investigation
Employer counsel should have a firm understanding of all the steps in an investigation before beginning so they can properly advise the employer, plan their work and avoid oversights along the way. Practical Law Canada's materials allow counsel to plan and carry out this work.