By Melanie Vipond, CPHR

In your your day-to-day role as an HR professional, you realize that most workplace conflicts can be resolved informally. Unfortunately, as you also know, there are those conflicts that benefit from a more formal approach.

Certain conflicts and other workplace situations should be investigated thoroughly to determine what happened and who is responsible. This is especially true if the result could lead to discipline. Conducting good investigations is extremely important, but challenging. Two recent court decisions demonstrated this in spades.

A Study in Due Diligence
In Shoan v. Canada (Attorney General), 2016 FC 1003, the Federal Court set aside the workplace harassment investigation report relied upon by the employer, as well as the resulting corrective measures imposed on the accused. The Court did this because it found that the investigator had made the following errors in the investigation process:

• evaluating issues with the accused’s behaviour not raised in context of the complaint;
• making comments in the interview process indicating that the findings were already determined;
• inferring the impact of the accused’s behaviour on parties without interviewing those parties; and
• accepting at face value the complainant’s evidence regarding certain comments made by the accused, without considering the entire context in which they were made.

A Failure to Complete
In Smith v. Vauxhall Co-Op Petroleum Limited, 2017 ABQB 525, the Alberta Court of Queen’s Bench set aside a workplace investigation report relied upon by an employer in their dismissal of a manager for alleged sexual harassment and assault of a subordinate. While the Court ultimately concluded that the employer had just cause to dismiss the manager, it found that the employer’s continued reliance on the unfounded allegations of sexual harassment and assault contained in the investigation report could warrant an award of costs against them. The Court noted several problems with the investigator’s conduct, including:

• failing to ask the complainant for the names of witnesses she had said could corroborate her claims;
  interviewing only the accused and the complainant;
• relying on general descriptions provided by the complainant about the accused’s conduct, without asking for specifics;
• indicating that his impartiality may have been affected as a result of the accused’s admission of some misconduct during the investigation and discovering past dishonesty by the accused; and
• relying on the complainant’s diary as a source to substantiate her claims, when it did not in fact mention sexual harassment or assault by the accused.

As can be seen, an investigator’s mistakes in an investigation can have unfortunate consequences such as the report being set aside, or financial liability on the employer. It is imperative that workplace investigators, and the employers who use their services, understand the weight of an investigator’s role, and the ultimate risks to the employer relying upon them if an investigation is improperly managed.

Tips to Ensure Proper Investigations
Here are some key tips for conducting a proper investigation:

• be unbiased, impartial and perceived as such by the parties involved;
• be open-minded as to what happened;
• interview all parties implicated in the conflict to obtain first-hand accounts of what occurred;
• assess the credibility of each witness’ account;
• avoid asking “leading” questions during the investigation that presume an answer;
• be aware of the need to make conclusions based on what a reasonable person would think in the circumstances, including how a reasonable person in both the complainant’s and the accused’s circumstances would have perceived the alleged conduct; and
• limit your investigation to the alleged conduct in question.

Melanie Vipond is presenting the Workplace Investigations workshop in Whitehorse on April 4. For more information on this workshop and other professional development opportunities, please visit cphrbc.ca.

Melanie Vipond, a partner at a law firm in Vancouver, practices in workplace law—labour and employment, human rights, occupational health & safety and privacy law. She has extensive experience in conducting workplace investigations and leading workplace investigation training across Canada. She has appeared before all levels of court and various administrative tribunals. Ms. Vipond is an adjunct professor at the Faculty of Law at the University of British Columbia teaching workplace law, and has a Masters in Law from Stanford University.