utilizing an impartial person with appropriate skills in conducting
investigations at the employer’s expense into the incident, issue or
conduct initially complained of.
An investigation which is ad hoc, cursory, superficial or mini-mal
will also not inspire confidence in employees to bring matters
of this nature to their employer’s attention and may result in those
employees turning to legal recourse to address the issues or mak-ing
a complaint to the Ministry of Labour. Therefore, it is essential
that employers not only take these matters seriously, but are seen
to take these matters seriously and dedicate the necessary atten-tion
and resources to the investigation.
The investigation which is to be conducted must be sufficient in
the circumstances in order to survive tribunal and judicial scrutiny.
At the very least, all investigations must be impartial, free of bias,
thorough and timely. The quality of the investigation starts with
the selection of the investigator who will conduct the investigation,
gather evidence, interview witnesses, make credibility assessments
and make decisions based on the facts. The investigator must be
neutral, trained with the skills required to interview witnesses
and evaluate credibility, and must be able to prepare a report with
respect to the issues investigated.
The report which the investigator prepares provides the
employer decision-maker with sufficient information to deter-mine
the appropriate action to be taken (if any) based on the facts
as well as the basis for a defence from liability for the employer in
the event of any future litigation. Seeing as the quality of the inves-tigation
and report is of utmost importance, utilizing a trained
third-party investigator is critical to assist the company in adher-ing
to its legal obligations; and the investigation is deemed to be
sufficient in the circumstances and can withstand tribunal and
judicial scrutiny. n
Peter V. Matukas is an employment lawyer and a credentialed
workplace investigator by the Association of Workplace Investigators
(AWI-CH) practicing in Ontario and leads the workplace
investigations group at Harris + Harris LLP.
THE EMPLOYER IS REQUIRED
TO INVESTIGATE WHEN A
COMPLAINT OR GRIEVANCE
IS MADE, OR THE EMPLOYER
BECOMES AWARE OF AN ISSUE
REQUIRING AN INVESTIGATION.
14 ❚ FEBRUARY 2019 ❚ HR PROFESSIONAL