Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50873
By Malcolm MacKillop and Hendrik Nieuwland Do you really need to conduct an investigation? A n investigation can be expensive, time-consum- ing, and disruptive to your workplace. It can cause significant stress for those involved and create acrimonious rela- tionships between co-workers. Equally troubling, an internal investigation can often be carelessly or negligently han- dled, creating unreliable conclusions. Yet, lawyers and human resources professionals are often far too quick to conclude that an investigation needs to be done in every single case involving a work- place issue. In fact, many lawyers assume that an investigation is always required if an employee could be subject to correct- ive action arising from the alleged mis- conduct. Is this a correct assumption to make? Subject to what your policy states, generally employers are not obligated to conduct a full investigation. Obviously, due diligence is important and in most cases an investigation will ensure you have all of the relevant facts before taking steps to impose corrective action. There are a few points to keep in mind. First, does your workplace policy require an investigation? Consider the language in your policy. If your policy requires an investigation or requires a "fair hearing" in every case where allegations are made, directly or indirectly, the employer should conduct some form of an investigation. At the very least, an investigation will involve interviewing the parties and any witnesses who have relevant informa- tion. It will also require you to provide the accused with significant particulars to allow him or her an opportunity to respond to the allegations. Following the procedure outlined in your policy will be important if your policy requires an investigation. Courts will rarely support an employer that has failed to follow the procedure in their own policy. That does not necessarily mean the investigation itself needs to be flawless. Second, does there have to be a formal Employment and Labour Lawyers Experience Counts. Referrals respected and appreciated. Shields O'Donnell MacKillop LLP 416.304.6400 65 Queen Street W, Suite 1800, Toronto, Ontario Canada M5H 2M5 Shields_IH_Apr_11.indd 1 10 • APRIL 2011 INHOUSE 3/1/11 10:04:56 AM