The investigator is often asked by nervous employees whether their identity and the information they give will be kept confidential. This cannot be guaranteed. Employees being interviewed should be made to understand that the information they give may be disclosed, in whole or in part, to other parties in an investigation as necessary.
It may not be necessary to share the identity of witnesses with other parties when, for example, general processes or practises in the workplace are being discussed. However, when exploring motive, relationships and other factors, especially when credibility is key, the identity and evidence of specific witnesses may need to be shared. Parties to the complaint or other witnesses with different evidence may be required to speak to the motive or relationships affecting the evidence of other witnesses.
In a workplace investigation, the investigator is usually gathering information that includes “personal information” under the Personal Information Protection Act (“PIPA”) in British Columbia. PIPA requires that, subject to certain exceptions, an organization must not collect, use or disclose personal information about an individual without their consent. Personal information is broadly defined to mean “information about an identifiable individual” but excludes contact information or work product information.
There are several exceptions to the prohibition against collection, use or disclosure. Consent may not be required if it is reasonable to expect that the collection, use or disclosure of personal information with the consent of the individual would compromise an investigation or proceeding, and the collection, use or disclosure in question is reasonable for purposes related to the investigation or proceeding.
“Investigation” is broadly defined in PIPA to include “an investigation related to:
(a) a breach of an agreement;
(b) a contravention of an engagement of Canada, or a province;
(c) a circumstance or conduct that may result in a remedy or relief being available under an enactment, under the common law, or in equity;
(d) prevention of fraud;
(e) trading in a security as defined in section 1 of the Securities Act if the investigation is conducted by or on behalf of an organization recognized by the British Columbia Securities Commission to be appropriate for carrying out investigations or trading in securities;
if it is reasonable to believe that the breach, contravention, circumstances, conduct, fraud or improper trading practice in question may occur or have occurred.”
This exception may apply to many instances of suspected workplace misconduct.
There are many other privacy issues that may arise. But the investigation exception is one tool that British Columbia employers should be aware of when considering the application of PIPA in a workplace investigation.