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written complaint before you initiate an investigation? If your policy is silent on this issue, you will need to decide in each case whether an investigation is necessary in the absence of a formal written com- plaint. The most prudent approach is to have any allegations put in writing. You cannot force people to file a complaint and practically speaking, a reluctant witness in an investigation is not going to help you much. Our preference is that your policy allows for discussion as to whether an investigation is necessary even when a formal written complaint has been filed. In many cases, common sense can be applied to find creative solutions rather than requiring a formal complaint and possibly a formal investigation. In some cases you may need to conduct an investigation even where there is no complaint per se. Third, is there a right to due process? Most people assume that anyone who is facing allegations has a right to face his or her accuser. This typically means the accuser gets to hear all of the allegations along with the identity of who made the allegations and then an opportunity to respond prior to any decision being made by the employer with respect to corrective action. However, in the context of a mas- ter-servant relationship, there is no right to a hearing and the principles of nat- ural justice do not apply. The only caveat is improper motive and if an employee can prove bad faith or improper motive, that may in some circumstances affect the employer's decision. What this clearly means is that employers can terminate an employee without providing any reason to the employee for the termination. This also means an employer can carelessly or negligently carry out an investigation and impose corrective action, and that will not override the employer's decision. This also means an employee is not entitled to counsel during an investigation or to be advised of all or any of the allegations or to have an opportunity to respond. Obviously, this may seem unfair but this does not mean the employee cannot chal- lenge the employer's decision by calling evidence of improper motive should the matter proceed to litigation. In most cases, this approach is not a best practice and should be discour- aged. However, in some circumstances, the employer will want to avoid an inves- tigation and implement a solution to a workplace issue, which may quickly and efficiently resolve the matter. In these cir- cumstances, depending on the facts in the case, an employer should not automatic- ally be criticized for making a unilateral management decision. In some cases, not conducting an investigation and not providing the employee with a "fair hear- ing" prior to corrective action is smart, practical, and offers the best solution for everyone involved. IH Malcolm MacKillop and Hendrik Nieuwland are lawyers with Shields O'Donnell MacKillop LLP in Toronto. CANADIAN EMPLOYMENT LAW Stacey Reginald Ball More than 5,800 cases cited! Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. CD-ROM or Internet! Also available on Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada and is used in law schools throughout Canada. Visit canadalawbook.ca or call 1.800.565.6967 no-risk evaluation for a 30-day CD-ROM or Internet version available Prices subject to change without notice, to applicable taxes and shipping & handling. CL0211 CANADA LAW BOOK® INHOUSE APRIL 2011 • mploymentLaw_IH_Apr_11.indd 1 11 3/7/11 10:10:53 AM