Selecting a Workplace Investigator

Selecting a Workplace Investigator
by Cynthia Lazar

Deciding to Conduct an Investigation

Sometimes a workplace investigation is required by either statute or a collective agreement. In other cases, an investigation is not required by law, but is a prudent step to protect the Employer's interests. For example, where the Employer is considering dismissing a non-unionized employee for just cause and a wrongful dismissal action is likely, a good investigation can bolster a case for just cause and can also be used to rebut allegations of bad faith conduct. Similarly, where allegations point to a potential contravention of Human Rights legislation or a violation of respectful workplace or harassment provisions in a collective agreement that may give rise to a grievance, a workplace investigation should be considered.

Once it is determined that a workplace investigation should take place, how should an employer determine what kind of investigator to retain, and what type of investigation is desirable?

Internal or external investigator?

The first consideration in selecting a workplace investigator is determining whether the investigation should be done "in-house" by an internal person or whether an external investigator should be retained. There are advantages and disadvantages to each approach.

An internal investigator will be more familiar with the workplace and policies and will be less costly than an external investigator. However, an external investigator will almost always be perceived as being more objective. Employees are more likely to feel comfortable speaking with an external party. Whether justified or not, internal investigators may be viewed as threatening, untrustworthy, or motivated to protect the Employer's interests above maintaining the integrity of the investigation. Reports of disinterested external investigators may also be more persuasive to an ultimate decision-maker than those of internal investigators. External investigators can be expensive though, especially as the scope and complexity of an investigation may not be easy to predict. Issues and witnesses may only become relevant after the investigation begins. This makes creating a realistic budget challenging.

Investigations of minor disputes between peers where future litigation is unlikely may be suitable for investigation by internal human resource professionals with proper training in investigations. Where there is a power imbalance between the Complainant and Respondent, potential litigation, or where there may be the appearance of bias due to a real or perceived personal friendship or relationship between the internal human resource professional and an employee involved, an external investigator is recommended.

It is worth noting for federally regulated employers, new amendments to the Canada Labour Code and Regulations provide that the Employer may select an investigator from a list jointly agreed to in advance by the Employer and its health and safety representative, workplace committee or policy committee. This list may contain internal investigators, external investigators, or a combination of the two. Where there is no list, the Employer, Complainant and Respondent must all agree. Where an agreement cannot be reached within 60 days, the Employer may choose an investigator from a list of individuals approved by the Canadian Centre for Occupational Health and Safety.

Privileged or Non-privileged?

Another consideration in choosing an investigator is whether the Employer wants to be able to claim privilege over the resulting report so that it can be kept confidential. It is possible to claim privilege over a report written by a non-lawyer in anticipation of litigation, but that privilege is more difficult to establish. If privilege is important, it is best to use a lawyer who can assert both litigation privilege and solicitor-client privilege. In order to do this, the retainer agreement has to be carefully drafted, and it must be clear that the purpose of the lawyer conducting the investigation is to provide legal advice or to prepare for litigation, and not just to ascertain the facts.

Privilege may be desirable where serious or complex litigation is possible, where there is actual litigation ongoing on the same or a potentially related matter or involving one or more of the same individuals, if upper management is involved, if there is a potential of serious damage to the Employer's reputation, or if the workplace is unionized and the investigation touches on matters which may impact collective bargaining. The Employer may always choose to waive the privilege after receiving the investigation report, if it is deemed advantageous to do so.

There are some cautions though:

• Just because privilege is asserted, does not mean it will be upheld if challenged. This is determined on a case-by-case analysis of the facts.
• The facts themselves are not privileged. Opposing parties can interview witnesses, require production of documents, and conduct their own investigations. Keeping an investigation privileged does not mean the facts won't be discovered and presented by other means.
• Privilege can be lost, sometimes unintentionally.

Workplace investigations are becoming more frequent, and consideration as to the type of investigator selected and investigation conducted should be given from the first-time allegations or complaints are raised.

About the Author: Cynthia Lazar is a Lawyer and Workplace Investigator at Taylor McCaffrey LLP. She can be reached at clazar@tmlawyers.com or 204-988-0300.