Description:

Folks, hold on tight because we’ve got another series for you. Move over, Bridgerton (again). This week, Jill and Dana kick off Part 1 of Workplace Investigations, specifically in the eyes of an employer. They define what a workplace means in the context of an investigation and who you can hire to conduct an investigation.

Full episode transcript below:

Announcer: This podcast is produced by Nelligan Law. 

Interviewer: Welcome to All Worked Up, the podcast where two employment lawyers break down real life workplace issues that affect real people. I’m Dana Duperron.

Respondent: I’m Jill Lewis and we’re senior associates at Nelligan Law. And we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers. 

Interviewer: Welcome to All Worked Up. I’m Dana.

Respondent: I’m Jill.

Interviewer: Jill, what’s got you all worked up today?

Respondent: All right, we’re all worked up today about workplace investigations. So much so that we have created a series.

Interviewer: Series?

Respondent: A Netflix short series.

Interviewer: No. Said it before and I’ll say it again move over Bridgerton here it comes.

Respondent: Here we come.

Interviewer: Workplace investigations.

Respondent: Workplace investigations. We’re going to break this down. We are seeing so many more investigations. People are doing them. We’re doing them. We’re a part of them at all stages and you’re hearing about workplace investigations in the news with like politicians and things like that. So we’re going to talk about it. We’re going to break it down. 

First episode today we’re going to do is for the employer. So like what are your responsibilities? What do you do? What can you expect? Next week’s episode is going to be for the complainant and the following week will be the respondent. So what to expect.

OK so workplace investigations, and the requirement to undertake an investigation is in the?

Interviewer: Occupational Health and Safety Act.

Respondent: Excellent Dana.

Interviewer: Of Ontario. Federally it’s in the Canada Labour Code.

Respondent: Very, very good. 

Interviewer: So you know for any federally regulated employees.

Respondent: You still have that, and there’s actually even the investigation’s even more specific in federal.

Interviewer: Yeah, and they’ve got a lot of like a whole new set of regulations that they’ve got to sort of follow along with and comply with.

Respondent: Yeah, I wouldn’t want to be an investigator necessarily because yeah you have to follow along with certain timelines there and stuff. But just talking Ontario like we talked about this really briefly last week. I mean this sort of goes hand in hand with what we were talking about. Discrimination, harassment, bullying, toxic workplace right? Any of these things can trigger an investigation.

So an investigation can be done internally, or externally. 

Interviewer: When do you think it should be done internally?

Respondent: Bleh, never. So no.

Interviewer: The best situations where it’s going to be internal are probably like a big organisation with a like dedicated HR staff. Where you don’t know either of the people. That’s sort of the best. 

Respondent: Yeah, the thing about the investigation is that it has to be impartial. It has to be done by somebody who’s impartial who should be trained. Actually I think that is the language from the Act. I’m kind of like looking at it briefly. I think that person has to be trained, or has experience. So you – I don’t know. I’d be cautious about having you know just the manager review it.

Maybe if it’s just a one-time incident that’s say like quick he said, she said I don’t know. It’s really hard to be able to tell people when to use an internal investigator. Because there’s always the risk that it’s not going to be done properly.

Interviewer: Yeah, or that the complainant, or respondent will argue that it wasn’t truly neutral.

Respondent: Exactly.

Interviewer: So the gold standard is external?

Respondent: Yes.

Interviewer: But?

Respondent: Those can be expensive.

Interviewer: Those can be expensive yeah, so for smaller employers sometimes prohibitively so. And there are very cost effective investigators.

Respondent: It completely ranges. So you can hire somebody who has specific training just in investigations. You can hire somebody who’s like an HR professional. You can hire a lawyer right? Anybody in between, so there are options out there. But we’re seeing them more and more because you have to investigate this stuff, so.

Interviewer: Right, and it’s not incumbent on the employee, the complainant whatever to say I want an investigation. If they say anything that triggers any of those obligations. Like you know I think I’m being subjected to harassment, or just mistreatment. Like as we’ve said in the harassment episode you don’t have to say the word harassment to trigger those obligations.

Respondent: Exactly yeah I mean it could be said during like a performance review you know? Somebody makes an offhand comment. You might want to look into that. Maybe talk to the person yeah more and get some more details on that. And maybe that’s an example of when it can be doing internally if it’s sort of like this one incident. We’re going to look into this quickly. Not quickly. I mean it does have to be thorough right? So you want to make sure.

So in an investigation you want to make sure that the allegations are really clear right? So you’ve set out what the allegations are. Sort of what the scope is of an investigation. Are we just looking into sort of like a broad harassment in the workplace? Or are we looking into whether so and so smacked so and so’s butt?

Interviewer: Yeah, I know what you’re thinking. You’re thinking of that new case yeah, with the yeah.

Respondent: A specific case.

Interviewer: You’re thinking of a one-time incident. That could rise to the level of harassment, sexual harassment whatever. Or is it this person has just generally claimed that they’ve experienced harassment over an extended period of time and has that happened?

Respondent: Yeah, yeah other thing that I would talk to employers about is like the definition of workplace. Because sometimes a lot of times a lot of these incidents occur outside the actual workplace. But you’re – 

Interviewer: Yeah, Christmas parties.

Respondent: – Christmas parties, so I’m talking Christmas parties, Christmas parties.

Interviewer: All about Christmas parties.

Respondent: Christmas parties, a busy time for workplace investigators is right after Christmas. So yeah like what is the definition of workplace? It’s not just like the four corners of your office right? It includes any sort of event that you may be having like after work drinks and that can include the workplace.

Interviewer: Yeah, even if it’s casual. Like organised by certain employers together.

Respondent: Exactly yeah. There was like a case on – somebody goes to – like they’re going up north with the employee, with a coworkers. And they’re on a plane and they’re heading back form like a work meeting. An incident occurs on the plane. Is that the workplace? And it is right?

Interviewer: If you’re travelling for work, it’s related to work.

Respondent: Like really you’re looking is there like a tether back to the workplace? Like can we link this back to the workplace? Is an employee texting a coworkers after hours like inappropriate messages? Maybe with a workplace phone. That might be your tether right? So you do have like an employer. You’re not off the clock just as like 5:00. You have that duty to first look into whether that incident meets that workplace definition. Because if it does then boom you’ve triggered your investigation.

Interviewer: Hotel rooms. 

Respondent: Right, hotel rooms.

Interviewer: Always hotel rooms for work trips.

Respondent: Oh my God.

Interviewer: Christmas party.

Respondent: So do we talk about the parties we have on our holidays? Where there’s so much alcohol and just like…

Interviewer: Yes, that’s often a contributing factor right?

Respondent: Yeah, sure. 

Interviewer: Yes, of course. 

Respondent: And just the other thing to think of too is even if it’s not in the workplace, if you are aware that there may be some – maybe there was harassment over the weekend with one coworkers harassing another. Maybe it’s not in the workplace and there’s no tether there. You should still look into it because you still owe that employee a safe workplace right? Under Occupational Health. So there may be some obligations there.

Interviewer: Right and there are obligations under the Occupational Health and Safety Act to protect employees form domestic violence and stuff. So if you’ve got two employees who are in a relationship or whatever that can also factor into that.

Respondent: Yeah, yeah.

Interviewer: So there’s a lot to think about. If anything comes to you as an employer that concerns you, and you should be concerned about anything that kind of feels like a complaint. You know you probably want to talk to someone about hey, what are my obligations here? Do I have to do an investigation?

Respondent: Exactly.

Interviewer: You know, sometimes the complainant will say I don’t want to do an investigation. And that can be a tricky line to walk. Because you have obligations under the Occupational Health and Safety Act as an employer. That you can’t necessarily ignore. You can’t ignore once you know something. 

Respondent: Yeah, you may have to still look into it without…

Interviewer: Yeah, and that may be where an informal process might be more helpful. Like where the employee might say you know what? I don’t want to make a complaint against this person, but I would be comfortable like you know having a mediation or some of those other steps potentially. But you should still talk to someone to make sure that you’re not setting yourself up for after the fact having that employee say you failed in your duty to investigate here.

Respondent: Yeah, same with anonymous tips right? Just because you don’t have like a complainant doesn’t mean you’re not responsible for the investigation. You can still do an investigation without the complainant. You might not be able to – I mean they’re…

Interviewer: You might not be able to substantiate any allegations but…

Respondent: Yeah, yeah because you’ve got nothing there, but you may still have to go through the process right?

Interviewer: Right, because as you were saying, you said in our last episode I remember that – I remember way back when.

Respondent: Oh God so long ago.

Interviewer: You said that even if you’re not the person subject to the harassment or whatever, you could be experiencing a toxic workplace and it’s the same thing when it comes to these investigations right? Someone may see something that they think is harassment. And say – and report it but be like I don’t want my name on that. Like I don’t want to – so hey, I saw that Jill was harassed. If the employer comes to you and is like hey Jill, were you harassed? And you don’t want to talk to them about it, that makes it really difficult to actually do that investigation. But at least they’ve tried to look into it right?

They’ve taken those steps to reach out to you and give you that opportunity to speak and bring your complaint forward.

Respondent: Yeah, so talking about the investigation process itself a little bit. Like retaining an investigator, your retainer is going to be really important for an employer. If you’re hiring an investigator who’s also a lawyer you’re hiring them and usually the retainer will be clear. You’re hiring them as an investigator. You are not hiring them as your lawyer.

Interviewer: Yeah, they’re not giving you legal advice. They are neutral.

Respondent: they’re neutral and so you8 may want your own lawyer right? Like you likely would use your own lawyer even maybe to get a recommendation on who to use. But don’t – yeah don’t lean on that investigator for legal advice because anything that can – anything that’s discussed between you two potentially could not be protected by privilege. Like that’s kind of a big issue and that’s ugh, boring legal stuff.

But just –

Interviewer: But important.

Respondent: – to be really careful. Like you’ve got to be careful like you don’t call an investigator and just start like well you know we’ve got this trouble employee here and I don’t think you’re going to find anything. 

Interviewer: Yeah, yeah, you don’t want to taint the investigation.

Respondent: Yeah, yeah so you now investigator is going to come at this with like fresh eyes. They’re going to first review the allegation itself. And likely speak with the complainant to get those allegations down. They’re going to have a mandate. They’re going to make sure – you want to make sure that the scope is really clear on what they’re doing. Is it just a finding of fact? Do you just want to figure out if so and so smacked so and so’s butt? 

Or do you want them to make recommendations after the fact on what to do with it? Yeah, do you want them to participate in some sort of like workplace mediation or something like that? So you’ve got to make sure that’s really clear.

Interviewer: Training.

Respondent: Yeah, training. A lot of these investigators also have those other services that they can provide. 

Interviewer: Right you want to be clear on what the scope is too. what they’re actually investigating because you don’t want it to be more broad than what they have been tasked with doing. And keep in mind that at the end you have to share the results of that investigation with the complainant and the respondent. And you have to share any corrective action that is being taken.

Respondent: Yeah, that is required in the Occupational Health and Safety yes, yes.

Interviewer: Yeah, that is required yeah.

Respondent: And go through – so employers also OK go through your policy. You may have something in there about workplace investigations. You may have timelines that you need to be, like you need to be aware of. So like go through that. Make sure you’ve provided all of that information to the investigator. Confidentiality.

Interviewer: Oh yeah.

Respondent: Ugh, that one’s hard. You want to keep this as confidential as possible. That can be hard in a small workplace. People love to chat, so an investigator will provide everybody involved with a confidentiality agreement. It just boggles my mind how some people just like yeah, confidentiality sure, I’ll sign this. And then they’re just like texting their friends at work and stuff like everything. That one’s hard because you don’t want to talk to the coworkers, but maybe there is a conversation there.

I think employers when you’re talking to the respondent, I think it’s really important. I think that initial call, and I would say it should be a phone call or some sort of meeting with the respondent.

Interviewer: You mean as opposed to an email?

Respondent: Yeah. To notify them like guess what? Guess who’s being alleged of harassment? You. So I think that initial like you know you’ve got a complain. Complaint’s come forward. You’ve like gone over the allegations. You’ve hired an investigator. I do think it’s on the employer to maybe do that first reach out to the respondent. Maybe it’s a call or…

Interviewer: Yeah, you don’t want to have the investigator reaching out first and the person doesn’t even know this has happened.

Respondent: Exactly, exactly.

Interviewer: Again that’s where I would tell the employer speak to your lawyer first because they also may have – speak to your lawyer as soon as you hear about the complaint. Because if the complaint is bad enough in some circumstances you’re going to want to put the respondent out of the workplace on paid leave. Sometimes maybe not, but talk to someone as soon as you know of the complaint.

Respondent: Yeah, yeah because if you wanted to fire them for cause later it could impact. Yeah, there’s a whole piece like strategy piece there that…

Interviewer: Yeah, must have a discussion right?

Respondent: Yeah, just have a chat about that. But you don’t want to just like shut down somebody’s emails. Like all of a sudden they go to work and like they can’t get into the office, no.

Interviewer: Yeah, you have to explain to – everybody’s entitled to know what’s going on. When I say everybody I mean the complainant and the respondent. Not everybody else all over the place.

Respondent: All over the place yeah. Yeah, so that’s sort of like the employer’s obligations when it comes to the investigation, but making sure that they’ve hired like an appropriate investigator for this situation. 

Interviewer: Mm-hmm and then letting the investigator kind of take it from there.

Respondent: Do it from there.

Interviewer: Not being too involved.

Respondent: Exactly yeah and then take any recommendations that they receive from the investigator and go ahead and implement them right? Whether it be training, or…

Interviewer: Or come up with your own whatever –

Respondent: Creative solution.

Interviewer: – it is that you want to do. If you haven’t asked the investigator for their recommendations, and making sure that that’s communicated to everyone, and implemented and again review your policies.

Respondent: Review your policies. Oh my gosh and sometimes that’s the recommendation. Yeah, review, make sure that they’re updated. Because a lot of times you may have in your policy that your investigation has to be done like within 30 days, or 45 days. Make sure there’s a clause in there that gives you an extension right? Like because then the employee – 

Interviewer: Just some wiggle room that you…

Respondent: – yeah the employee can come back and say you didn’t follow policy. It’s just yeah talk to a lawyer as soon as somebody comes forward with one of these complaints. Make sure you understand your obligations, and then hire the investigator right? Like yeah.

Interviewer: Exactly yeah.

Respondent: All right.

Interviewer: Well that is an employer’s obligations with respect to workplace investigation. And next time we’re talking about?

Respondent: We are talking about the complainant. What to expect if you are a complainant in a workplace investigation.

Interviewer: Right, that’s what’s got us all worked up.

Respondent: Got us worked up.

Interviewer: All right, we’ll talk to you next time. 

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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