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February 2, 2011

Do You Really Need to Conduct an Investigation?

Authors Malcolm MacKillop and Hendrik Nieuwland

An investigation can be expensive, time consuming and disruptive to your workplace. It can cause significant stress for those involved and can create acrimonious relationships between co-workers. Equally troubling, is that an internal investigation can often be carelessly or negligently handled creating unreliable conclusions.

Yet lawyers and Human Resource Professionals are often far too quick to conclude that an investigation needs to be done in every single case involving a workplace issue. In fact, many lawyers assume that an investigation is always required if an employee could be subject to corrective action arising from the alleged misconduct. Is this a correct assumption to make? Do employers have to conduct an investigation every time that an allegation of misconduct is made? Is there a corresponding obligation to provide the accused with a hearing in order to disclose all the allegations to the accused and to allow the accused to respond? Do you always have to conduct an investigation? Subject to what your policy states, generally employers are not obligated to conduct a full investigation. Obviously, due diligence is important and in most cases an investigation will ensure that you have all the relevant facts before taking steps to impose corrective action. Here are a few points to keep in mind.

1. Does your workplace policy require an investigation?
Consider the language in your policy. If your policy requires an investigation or requires a “fair hearing” in every case where allegations are made, directly or indirectly, the employer should conduct some form of an investigation. At the very least, an investigation will involve interviewing the parties and any witnesses who have relevant information. It will also require you to provide the accused with significant particulars to allow him or her an opportunity to respond to the allegations. Following the procedure outlined in your policy will be important if your policy requires an investigation. Courts will rarely support an employer who has failed to follow the procedure in their own policy. That does not necessarily mean that the investigation itself needs to be flawless.

2. Does there have to be a formal written complaint before you initiate an investigation?
Context is important. You should consider the language in your policy. Is a written complaint required before an investigation is undertaken. Follow what your policy says. If your policy is silent on this issue you will need to decide in each case whether an investigation is necessary in the absence of a formal written complaint. The most prudent approach is to have any allegations put in writing. You cannot force people to file a complaint and practically speaking, a reluctant witness in an investigation is not going to help you much. My preference is that your policy allows for discussion as to whether an investigation is necessary even when there is a formal written complaint that has been filed. In many cases, common sense can be applied to find creative solutions rather than requiring a formal complaint and possibly a formal investigation. In some cases you may need to conduct an investigation even where there is no complaint per se.

3. Is there a right to due process?
This is an interesting question as most people assume that anyone who is facing allegations has a right to face his or her accuser. This typically means that the accuser gets to hear all the allegations along with the identity of who made the allegations and then a full opportunity to respond prior to any decision being made by the employer with respect to corrective action. However, in the context of a Master – Servant relationship there is no right to a hearing and the principles of natural justice do not apply. The only caveat is improper motive and if an employee can prove bad faith or improper motive, that may in some circumstances, impact upon the employer’s decision. What this clearly means is that employers can terminate an employee without providing any reason to the employee for the termination. This also means that an employer can carelessly or negligently carry out an investigation, impose corrective action and that will not in itself override the employer’s decision. This also means that an employee is not entitled to counsel during an investigation and is not entitled to be advised of all or any of the allegations and is not entitled to have an opportunity to respond. Obviously, this may seem unfair but this does not mean that the employee cannot challenge the employer’s decision by calling evidence of improper motive should the matter proceed to litigation.

In most cases, this approach is not a best practice and should be discouraged. However, in some circumstances, the employer will want to avoid an investigation and will want to implement a solution to a workplace issue which may quickly and efficiently resolve the matter. In these circumstances, depending on the facts in the case, an employer should not automatically be criticized for making a unilateral management decision. In some cases, not conducting an investigation and not providing the employee with a “fair hearing” prior to corrective action, is smart, practical and offers the best solution for everyone involved.

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