With the complexity of workplace law and issues, employers are subject to an increasing number of workplace obligations. When a workplace incident arises it’s often required, or at least advisable, that an employer conduct a prompt and thorough investigation.
In this and subsequent posts, we will review some key legal issues that arise in conducting or directing a workplace investigation, including privacy, confidentiality, and the issue of legal privilege.
We will also discuss who should conduct the investigation, including when to use counsel, and when investigating counsel should be different than an employer’s usual employment counsel.
Finally, we’ll discuss some cases that show when an investigation has gone wrong to demonstrate the ramifications.
The first question is when to investigate. In some circumstances, an employer will be compelled by statute to investigate an accident. For example, the BC Workers Compensation Act requires an employer to immediately undertake an investigation into the cause of any accident or other incident that resulted in an injury to a worker requiring medical treatment, or had the potential to cause serious injury to a worker.
An obligation to investigate may also arise when instances of harassment or discrimination are alleged in the workplace that contravene human rights legislation. Employers who don’t remedy such misconduct may face human rights claims.
Further, the courts have held that creating a “intolerable” workplace environment may ground an action for constructive dismissal. Thus, even absent human rights considerations, an employer should investigate allegations of bullying, hostility or unfairness in the workplace. Such investigations can provide the factual basis for a “just cause” defence should the incident lead to the dismissal of an employee. Also, if an employer draws unfounded conclusions damaging to an employee’s reputation without affording the employee an opportunity to answer those allegations in a proper investigation, it risks a claim for damages for breach of its obligations for fair dealing in the manner of termination of the employment contract.
This establishes why some of the reasons when an employer may wish to investigate. In subsequent posts, we’ll discuss other aspects of workplace investigations.