Originally appeared in Lang Michener LLP InBrief, and Monster.ca
Author: Lai-King Hum
Fall 2008
Employers are increasingly under a plethora of obligations vis-a-vis the well-being of their employees. These obligations must be balanced against their obligations towards you, the employee against whom a complaint has been made.
For instance, you have just received a letter from your superior stating that a co-worker has accused you of sexual harassment. An investigation is about to be conducted, and a preliminary meeting has been scheduled. You know that the complaint is frivolous and are angry that your co-worker has complained. As you are hauled into your superior’s office to undergo what may be unpleasant questioning, bear in mind that most employers understand that they are under a legal obligation to conduct these investigations with an open mind.
A complaint of sexual harassment is serious and could be cause for dismissal without notice. So are allegations of discrimination, criminal activity, theft, and bullying. On the other hand, you may have a legitimate explanation that nullifies the complaint.
Bear in mind the following if you are under investigation at work:
Look at your employer’s HR policies:
Most employers have policies in place regarding workplace complaints and investigations. Courts have held that employers are bound by employment policies relating to the conduct of investigations and disciplinary matters. Read the policies as soon as you are told that an investigation is being conducted. Be familiar with the process that your employer has committed to following and make sure that the process is in fact followed. If it is not, bring it to your employer’s attention.
Consult a lawyer:
An investigation is not a legal proceeding. You therefore don’t have a right to have your lawyer present during the course of an investigation. However, consulting a lawyer about your legal rights, particularly if the complaint is a serious one, is prudent and will help you understand the appropriate scope of an investigation.
Cooperate with the investigation:
Whether you like it or not, you are under an obligation to cooperate with your employer during the investigation. Failure to do so could be raised as a breach of the employer/employee relationship. At the same time, you are also entitled to be investigated by an unbiased investigator. If you suspect that the investigator is not a neutral third party, or that the investigator has already decided the outcome, raise this concern with your employer immediately.
Disclose underlying issues:
If you have underlying issues that may be affecting your work, such as substance abuse or mental health issues that might be characterized as an illness, you may wish to disclose them during the investigation. Where there are genuine health issues, the employer has an obligation to accommodate your illness. Although this may not justify behaviour that affects others in the workplace, it will be a factor in determining that a result other than termination for cause is appropriate. Ask questions:
The investigator is obliged to provide you with details of the complaint made against you. You are entitled to know what the complaint against you is, so get as many details as you can before you respond to the complaint.
Do not lie:
You have to respond to the investigation. You may have a legitimate explanation for the conduct complained about or the complaint may be simply frivolous. However, if it is not, do not lie. Deliberate dishonesty during the course of an investigation will provide your employer with grounds to terminate you for cause. Witnesses:
Consider who your witnesses might be and be ready to produce their names to the investigator. Most investigations are subject to confidentiality: do not try to influence your witnesses or to prevent other witnesses from coming forward with information against you.
Retaliation:
The name of the person who has complained will be disclosed to you as part of the investigation. Do not engage in any conduct that might be viewed as retaliatory. This will add fuel to the complaint against you, and could be additional grounds for cause.
Results of investigation:
An employer has an obligation to conduct a full and thorough investigation before reaching conclusions about the complaint. You are entitled to know the findings of an investigation. You should also be afforded an opportunity to get advice and consider the findings.
If there is no legitimacy to the complaint against you, a properly conducted investigation will clear you. If the investigation has been conducted in a biased or incompetent manner, and you are terminated unjustly, then you may have a case for wrongful dismissal and punitive damages for the manner in which the investigation was conducted. Consult a lawyer.