Canadian Lawyer InHouse

13 CANADIANLAWYERMAG.COM/INHOUSE SEPTEMBER 2015 Q U I Z By Abdul-Basit Khan, partner, WeirFoulds LLP GO TO CANADIANLAWYERMAG.COM TO WATCH A WEIRFOULDS LLP LAWYER TALK ABOUT THIS QUIZ. 1 Notwithstanding their direct reporting relationship, Donna and Frank enter into a consensual relationship for several months. Donna then decides to end the relationship. Following the break- up, Frank continues to text and call Donna, often sending angry and obscene comments to her. Donna attempts to deal with the situation by confronting Frank directly, but his behaviour continues. Donna approaches human resources and discloses that a "co-worker's" obsessive and inappropriate behaviour toward her is causing her to feel extremely uncomfortable and unsafe in the workplace. She advises that she does not want to fi le a formal complaint, and is reluctant to name the co-worker's identity unless HR can guarantee her 100-per-cent anonymity. Can HR guarantee confi dentiality? Yes No 2 Donna ultimately identifi es Frank; however, she refuses to proceed with a written complaint. Frank has been one of the directors of the company since its inception and has always played a key role within senior upper management. What are the company's obligations? (a) Wait until a written complaint is received. (b) Discuss the potential complaint with Frank. (c) Meet with Donna and explain to her why the company would prefer a complaint in writing. (d) Fire Donna. 3 Shortly thereafter, a new hire in the department comes forward with a verbal complaint against Frank alleging he had asked her out on several occasions and leered at her in a creepy manner. During some additional fact gathering, it is discovered the new hire and Donna are very close friends and the alleged incident may have been exaggerated and perhaps even fabricated by the new hire, who thought Frank should be punished for his behaviour toward Donna. What additional measures should the company take in light of the new information? (a) Ask the new hire if she is conspiring with Donna. (b) Reprimand them both. (c) Ensure appropriate questions are asked of both Donna and the new hire by the internal or external investigator. (d) Speak to Frank about the possibility of a conspiracy and obtain his recommendations on next steps. 4 While the matter is under investigation, Frank is placed on a paid leave of absence and instructed that, during his leave, he is not to communicate in any manner with any other employee. During her interview, Donna produces an audio recording she states is a recording of a private discussion she had with Frank after his leave of absence had begun. Donna insists the recording will reveal Frank pleaded with her not to disclose to HR their previous intimate relationship. Donna acknowledges that she did not advise Frank she was recording the conversation and that the sound is very muffl ed. She is later unclear about who initiated the call. Can you consider the audio recording as evidence and what weight can be given to it? (a) Yes, and treat it as critical evidence. (c) Yes and assign it appropriate weight. (d) Cannot consider it as it was prepared surreptitiously. (e) Cannot consider it for privacy reasons. The dos and don'ts of workplace investigations Workplace investigations are essential in cases of alleged harassment, workplace violence, bullying, fraud or other types of egregious misconduct. However, employers often fail to conduct a thorough and legally sound investigation, costing the business time and money, and attracting signifi cant exposure to liability. The Ontario Court of Appeal's decision in Boucher v. Wal-Mart Canada Corp., clearly illustrates this risk. Boucher was awarded more than $400,000 in damages as a result of Wal-Mart's failure to properly investigate her allegation of harassment. Take this quiz to fi nd out how prepared you are to handle a workplace investigation.

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