Canadian Lawyer InHouse

SEPTEMBER 2015 14 INHOUSE Law External Counsel E Law E Law INNOVATOR RISK Q U I Z ANSWERS YOUR RANKING? ■ One correct: might be time to brush up ■ Two correct: not bad, but some further work needed ■ Three correct: very well done, but not perfect ■ Four correct: excellent 1 (a) No, HR cannot guarantee Donna 100-per-cent anonymity or confi dentiality. Due process is the hallmark of any proper investigation. Frank has a right to know what the allegations against him are and who is making them. Without that information, he would be hard-pressed to respond to the allegations as he would be speculating regarding their source and would thus only be able to respond on a hypothetical basis. The better approach is for HR to meet with Donna and explain to her the process involved and the protection from retaliation that exists within human rights legislation as well as applicable company policies. She should be informed that a directive to maintain confi dentiality, to not retaliate or commence his own mini- investigation would be communicated to Frank in writing at the outset of the investigation process. 2 (c) The better approach would be to meet with Donna and explain to her why the company would prefer a complaint in writing. A written complaint would allow her to articulate allegations precisely and minimize ambiguity or any other lack of clarity that might result in a misunderstanding regarding the particulars of her complaint. This would also ensure fairness to Frank in allowing him to respond to specifi c concerns rather than generalized allegations. The fact that Frank is a director of the company and a key manager is largely irrelevant. The employer's obligation is to be fair to both parties without prejudging the complaint in any manner. Thus, while every attempt should be made to secure a written complaint in order to ensure fairness to both the complainant and the accused, a written complaint is not a prerequisite to the investigation. It would be possible for the employer to commence the investigation and, in initial meetings or interviews with Donna, probe and elicit her specifi c complaints verbally. 3 (c) With the discovery of the additional facts, the employer should ensure the new hire is also interviewed as a witness with potentially relevant evidence. That being said, it would make sense for the employer to communicate to both Donna and the new hire separately and in writing the importance of confi dentiality and of not discussing the subject of the investigation with fellow co-workers. 4 (b) The audio recording is clearly relevant and, therefore, must be considered by the investigator. However, when the evidence on the recording is heard and taken into account, the clarity of the recording will be relevant. If the sound is muffl ed, the voices are unclear and it is diffi cult to tell who is saying what to whom, that evidence may carry little or no weight at all. In any event, even if the recording is clear and establishes that Frank was trying to plead with Donna not to disclose their relationship to HR, the better response in those circumstances would be a written reprimand or letter of warning to Frank regarding his communications with Donna as opposed to a more drastic step such as dismissal for cause, which may not be sustainable. A DAILY BLOG OF CANADIAN LEGAL NEWS LEGALFEEDS.CA FEEDS LEGAL POWERED BY V O T E D BEST NEWS BLOG CLAWBIES 2014

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