Specialists in Employment Law / Workplace Investigations
Breach of Shareholder / Employment / Non-Competition Agreements
Conflicts of Interest / Fraud / Kick Backs
"Suspect" Contractor Relationships
Corruption / Money Laundering
Threats / Extortion Against Management
Employment Related Criminal Matters / Theft of Trade Secrets / Theft of Proprietary Information
Expense / Accounting Irregularities
Misappropriation of Corporate Assets
Sexual Harassment Allegations
Bullying / Violence Allegations
We assist Corporations with being "proactive" regarding Bill 168 which amends Ontario's Occupational Health & Safety Act with respect to "violence and harassment in the workplace".
We develop "security procedures" to be included in the company's policy & procedure handbook / manual to ensure proper protocols are followed and thorough investigations are conducted in order to avoid potential costly litigation.
Impartial Workplace Investigations:
Berkeley's President, Robert H. Woodman, CFE is a member of the Association of Workplace Investigators ( AWI )
An impartial investigation is generally conducted so that an employer can determine what occurred when there are contested allegations affecting the workplace that involve a potential violation of the employer’s policies, standards, ethics, or the law.
The point of an impartial investigation is to provide a fair and impartial process for the complainant and respondent and to reach reasoned conclusions based on the information gathered.
The Association of Workplace Investigators ( AWI ) has established a set of "Guiding Principles" for its members which enhance the quality of workplace investigations, which are as follows:
1. DECISION TO CONDUCT AN INVESTIGATION: A workplace investigation should occur when indicated by law or policy as determined by the employer. Key factors to consider: a. If key facts are in conflict, an investigation often is appropriate. b. Even if key facts are not in conflict (e.g., the respondent has admitted the alleged conduct), the employer may need to determine the number of persons affected or the extent of harm. c. Whether or not a violation is one of policy or of law may influence the decision. d. Whether the complaint is based on the complainant being in a protected category is a consideration. If not, an employer may consider whether the conduct alleged nevertheless violates the employer’s rules, policies, practices, or expectations. e. Allegations may call for an “organizational assessment” instead of an “investigation” (e.g., friction within a work group).
2. CHOICE OF INVESTIGATOR: The investigator should be impartial, objective, and possess the necessary skills and time to conduct the investigation. Key factors to consider: a. Whenever possible, the investigator should be someone who is in fact, and who is perceived by the participants to be, impartial, though this may not be possible in every case. b. Employers may choose to use an in-house (internal) investigator. In such a case, the internal hierarchy of the organization should be considered in order to avoid the fact or guiding principles perception of bias or compromised objectivity. c. Employers who choose to retain outside investigators should consider any licensure requirements which may apply to outside investigators. d. An outside attorney investigator conducting an impartial investigation should appreciate the distinction between the role of impartial investigator and that of advocate. Employers should guard against exerting undue influence on investigations. This does not preclude them, for example, without limitation, from preserving evidence, providing necessary notifications to employees, and providing input to investigators concerning the investigations’ scope. f. The investigator should consider whether specialized expertise is required, and, if so, consider whether the investigator possesses the requisite expertise, whether the investigator should partner with another with the requisite expertise, or whether the investigator should decline the investigation.
3. SCOPE OF INVESTIGATION: The employer and the investigator should develop a mutual understanding concerning the scope of the investigation. In this context, the “scope” of the investigation refers to the issues to be investigated. Key factors to consider: a. Determining the scope of the investigation differs from determining the process to be followed in conducting the investigation. b. During the course of the investigation, the investigator may become aware of issues that are beyond the initial scope of the investigation. If this occurs, the investigator generally should provide appropriate notice to the employer, which may include documentation, so that the employer can determine the appropriate course of action. c. If requested to do so by the employer and if the investigator agrees, the investigator may include the additional issues with the original investigation or may conduct a separate investigation. d. During the investigation, if the employer decides to change the scope of the investigation for reasons other than the discovery of additional issues, to limit interviews, or otherwise to restrict the investigation, the investigator may wish to document these changes or restrictions.
4. INVESTIGATION PLANNING: The investigator should engage in planning for an effective investigation. Key factors to consider: a. The investigator should consider what documents, if any, are needed and how to obtain them. Documents may include emails and e-files, text messages, personnel and sensitive files, timelines, policies, procedures, handbooks, and relevant prior investigation materials. b. The form that the report should take (i.e., oral v. written; recommendations; legal conclusions) generally is decided upon by the employer. c. The advisements to be communicated to witnesses and the manner in which they will be given should be determined in advance. d. Initial determinations to be made often include who will be interviewed, in what order, and for what purpose, subject to changes due to witness availability and additional information obtained. e. Planning may include deciding who should schedule interviews, work out logistics, set up interviews, identify the resources needed, and provide the needed resources. f. Adjustments to the investigative plan may need to be made as a result of new developments or newly-discovered witnesses or evidence. g. General lines of inquiry are typically developed to be used in interviewing witnesses.
5. COMMUNICATING WITH EMPLOYER REPRESENTATIVES AND WITNESSES: A determination should be made with whom the investigator will be communicating about what matters, taking into consideration issues of privilege. Key factors to consider: a. In addition to witnesses, communications with the employer (or on behalf of the employer) generally fall into three main categories: (1) communications concerning the scope of the investigation, the advisements to be given, and the type of report to be produced; (2) communications concerning the process for obtaining evidence, scheduling, and logistics; and, (3) background information. b. If feasible, investigators should avoid communicating outside the interview process with anyone who is or may be directly involved in the matters being investigated, or with anyone who is or may be interviewed on substantive matters. c. If feasible, an employer representative should not be a witness or participant in the matter being investigated. d. An employer representative generally is the most appropriate person to handle logistics and scheduling and to determine the content of initial advisements to be given to current employees. These include, for example, the need to cooperate in the investigation, to maintain appropriate confidentiality, and to tell the truth during the interview. e. An employer representative generally will decide whether third parties may be present during interviews if requested by a witness. This includes representatives if an employee is covered by a collective bargaining agreement. However, an investigator who is an attorney must be cognizant of rules of professional responsibility, including rules concerning contact with a represented party. f. An investigator should avoid communicating conclusions before the investigation is complete.
6. CONFIDENTIALITY AND PRIVACY: The investigator should take steps to safeguard the confidentiality of the investigation without guaranteeing anonymity or complete confidentiality. Key factors to consider: a. The investigator should maintain the investigation file in a manner that will protect the confidentiality of the information contained therein, consistent with the employer’s instructions and legal requirements. b.The investigator should consider the extent to which the investigator reveals information in order to conduct an effective interview.
7. EVIDENCE GATHERING AND RETENTION: The investigator should gather relevant evidence. Key factors to consider: a. In determining the evidence to gather, the investigator may consider, without limitation: i. The nature of the allegations; ii. Laws and policies, for example, the employer’s electronic media policies; iii. The probative value of the evidence, weighed against the costs of gathering the evidence, in terms of available financial resources, time, and potential disruption to the workplace; and, iv. Whether outside expertise is needed. b. If the investigator requests evidence from the employer that the employer declines to produce, the investigator may wish to document this.
Investigating "Harassment / Bullying" In The Workplace
Workplace investigations at times are laden with complications which present unique challenges for management, necessitating difficult decisions to be made. A good investigator must possess a solid understanding of due process requirements, as well as excellent communication skills, a lack of which would most certainly result in a shabby and inferior investigation.
In Ontario Superior Court case Stone v. SDS Kerr Beavers Dental, it was reported the judge found in favour of the Plaintiff, who was terminated with cause for engaging in sexual harassment. The judge determined the workplace investigation was “flawed”, as it was conducted by an inexperienced HR employee, and the sub-standard investigation played a significant role in the Plaintiff’s termination. The court was especially concerned that the accused was not afforded the opportunity of explaining his actions or rectifying the situation. The Plaintiff was given only a very vague description of the harassing behaviour and the complainants were not identified.
Corporate management / HR Professionals should be proactive by including the following checklist in the “Security Procedures” section of the company’s policy & procedure handbook / manual to ensure proper protocols are followed and thorough investigations are conducted in order to obtain airtight conclusions, thus avoiding potential costly litigation.
Evaluate the complaint:
Be mindful that not all anonymous complaints warrant an investigation. If you have a reluctant complainant, consider alternate solutions that may not involve an investigation, such as a transfer to a different department or location, or perhaps additional education and training.
Choosing an investigator:
It is recommended that Corporate Counsel not be involved in the investigation process. It could be a representative from HR, but in most instances, it should be an external experienced and impartial investigator.
Control the scope of the investigation, which can easily grow and take on a life of its own. An overly broad and unstructured investigation tends to cause more disruption in the workplace, takes more time and becomes quite costly.
The investigator must be cognizant and respectful of the rights of both the accused and the complainant throughout an investigation. Both parties must be made fully aware of what is being said about them. All allegations and the identity of witnesses must be disclosed.
Although it is an internal investigation, Counsel for the complainant, the accused and even witnesses should be permitted to participate by being present during questioning. Denying an accuser’s request to have their counsel present may be misconstrued as being unfair and highhanded. One caveat; Counsel’s participation should be restricted to prevent them from interfering with the conduct of the investigation.
The investigation, followed by the decision making process, must be carried out expeditiously, with the decision communicated to the complainant and the accused without delay. Delay causes disruption in the workplace.
Morale is an essential component within any organization. Management should provide emotional support to all participants by recommending the company EAP or suggesting a paid leave of absence.
Evaluate employer action:
In the event the investigation reveals the employer condoned the accused’s behaviour without taking action, this must be a consideration in evaluating the conclusions and deciding the proper corrective action.
Distribution of the company’s “harassment policy”, together with in-house training, should be an ongoing process. Redistributing the policy every six months or during each performance review reinforces the message with all employees.
Choose discipline carefully:
There are different levels of harassment severity and termination is not always the best actionable route to take. Keep in mind, dismissed employees have the sympathy of the courts on their side, and when determining whether an employee who is found guilty of harassment should be dismissed with cause, a contextual analysis will be adopted.