legal words
The Benefits of Hiring an
External Investigator
RELY ON OUTSIDE EXPERTISE FOR SERIOUS ISSUES
By Hena Singh
We have now passed the fifth
anniversary of the changes
to the Occupational Health
and Safety Act (“Act”),
which requires employers to have workplace
harassment and violence policies
and to conduct workplace investigations
into allegations of harassment and
violence.
As a result of these changes to the
Act, there is a heightened awareness for
employers of the importance, necessity
and value of conducting proper workplace
investigations. However, there is
still confusion for employers as to when
investigations are more appropriately
conducted internally or externally.
There are a number of instances where
an employer can, and should, attempt
to resolve disputes in the workplace
without the involvement of an external
investigator. For example, performance
related issues or basic interpersonal matters
where there are no allegations of
harassment, violence, discrimination or
any other wrongdoing may be handled
internally, with the advice of legal counsel,
if necessary.
However, when the issues are more serious
than the day-to-day performance
or interpersonal conflicts, or involve allegations
of harassment, violence and/
or discrimination, things get a bit more
complicated.
Conducting investigations internally
can be attractive from an employer’s perspective
as they can feel less intrusive and
can be more cost-effective at the outset.
Although this may be enticing to employers,
the complexities and problems
that can arise from an improper internal
investigation may quickly outweigh the
appeal of handling it internally.
The cases speak for themselves. Take
for example the recent case of Boucher v.
Wal-Mart Canada Corp. Wal-Mart stated
they conducted an internal investigation
of the employee’s complaints and found
that the complaints were unsubstantiated.
However, the employee commenced a
claim against Wal-Mart and the Ontario
Superior Court awarded the employee
$1,450,000 in damages. Although the
Ontario Court of Appeal reduced the
award to $410,000, it is clear that significant
damages can flow from an improper
internal workplace investigation. Factor
in, also, the inherent costs and potential
embarrassment to the employer caused
by these public cases and decisions.
The lesson? The Act and the cases are
telling us clearly that workplace investigations
are important and should be
conducted properly. Employers who do
not follow proper process with respect to
investigations can, and will be, held liable.
Properly trained external investigators
are proficient in their knowledge of the
process to follow – how to sift through
information; what information to look
for; and how to elicit the necessary information
to conduct a proper and thorough
investigation.
External investigators can be of further
benefit to employers because they are inherently
neutral and impartial and have
no pre-existing interests in the outcome
of an investigation. External investigators
also understand the expectations
and requirements should litigation arise
following allegations of workplace harassment,
violence and/or discrimination.
yuki33 / Shutterstock
HRPATODAY.CA ❚ JANUARY 2015 ❚ 15
