Labour and Employment Law Blog

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: 

 When faced with conducting a workplace investigation, we recommend the following:

In conducting interviews, investigators should: 

- Incorrect: “Billy harassed you, right?”

- Correct: “How would you describe your interactions with Billy in the workplace?”

- Get specifics “What words did he use?”, “What time did this occur?”

- Ask if there is any other evidence or any other witnesses

- If necessary, go back and conduct further interviews

 

Finally, to conclude an investigation, we recommend:

- Writing down the reasons

- 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

- 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

The Labour and Employment Group at Lawson Lundell LLP has experience in all types of workplace investigations. We can assist with: