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 and/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. Not to mention 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.
Employers who do not follow proper process with respect to investigations can, and will be, held liable.
The following circumstances, while not exhaustive, illustrate some occasions when the expertise of an external investigator can be advantageous to employers who are faced with unresolved allegations or issues:
- Where an internal investigator does not have sufficient workplace investigation training and/or experience: Conducting workplace investigations is not an inherent skill. As such, training and experience are a necessary component for conducting workplace investigations.
Where impartiality and credibility of the investigator is of concern: For example, where the respondent is a senior employee and an internal investigation (conducted by an equal or less senior employee) can be seen to be inherently biased because of the respondent’s seniority.
Where the internal investigator can be seen as biased because of a relationship with one or more of the parties and/or witnesses involved.
Where the allegations are of a serious nature, including harassment, violence, discrimination, fraud, theft, computer/property/equipment misuse, etc.
Where the alleged conduct may be subject to media attention and/or scrutiny. - Where litigation could flow from the issues and reliance on an investigation report may be needed.
In addition, hiring an external investigator will further highlight to any decision maker that an employer has done their due diligence in the event that litigation arises.
External investigators are also beneficial from the employee’s perspective. Employees tend to be more comfortable talking to a “neutral outsider” regarding allegations than to an investigator who they may perceive to have internal bias.
Taking the step to hire an external investigator also creates the impression that the employer is taking issues seriously. This has the tendency to increase morale among employees. When employees do not feel that issues are being addressed appropriately, morale can decrease and tension increase significantly in the workplace.
When you are sick, you seek assistance from someone with proper medical training. Why would you rely on someone without the proper training and experience to take care of your workplace? Expert external investigators provide an invaluable service in such circumstances.
Hena Singh is the founder of Hena Singh Law.