HUMAN Capital - Summer 2013 - (Page 43)
Do’s and Don’ts of
BY LEANNE HOSFIELD HARDING
Investigations: When and Why
Your company has just received a complaint alleging harassment
and bullying by one of your employees. A fist fight broke out on
the plant floor. Your auditor suspects an accounting clerk has been
cooking the books and pocketing thousands of dollars. A serious
accident or near-miss has occurred. These are just a handful of
circumstances when an employer should conduct a workplace
investigation. However, not just any investigation will do. Courts are
increasingly holding employers accountable for poorly conducted
investigations, and damage awards against employers in this area
are on the rise.
Several recent cases illustrate the risk employers face should they
fail to conduct an adequate workplace investigation. For example,
in Elgert v. Home Hardware Stores, an employee sued his employer
for wrongful dismissal after he was terminated as a result of a
sexual harassment complaint fi led against him. The employer failed
to prevent potential bias when it selected an investigator who was
a friend of the complainant’s father and who had no experience
conducting investigations. The investigator did not interview all
relevant witnesses. He also failed to inform the accused employee
what the investigation was about, instead telling him, “You know
what you did.”
The employer did not fare well in this case. At the Alberta Court
of Queen’s Bench level, a jury awarded $200,000 in aggravated
damages, $300,000 in punitive damages plus pay in lieu of notice
to the employee. The Alberta Court of Appeal overturned the
aggravated damages award, reduced the punitive damages award
to the still substantial amount of $75,000, and upheld the pay in
lieu of notice award of 24 months. Th is decision sent a message to
all employers that a poorly conducted investigation can result in
In Boucher v. Walmart, a management level employee sued for
constructive dismissal. She reported that, following her refusal to
falsify records at the request of another manager, she was subjected
to daily verbal abuse by two managers and was punched in the arm
by one of them. The employer initially took no action, and the bullying and harassment continued. The employee suffered negative
health consequences and stopped going to work.
The employer eventually confronted the managers alleged to be
involved in the mistreatment of the complainant employee, and
terminated the manager who punched her. However, this was
not enough. A jury assessed $1.21 million in damages against the
employer and $250,000 against a manager personally. While this
award may be reduced or overturned on appeal, it is yet another
illustration of the potential financial consequences of inadequate
Tips for Conducting Proper
Failure to conduct a proper workplace investigation may result in
serious damages against the employer, not to mention the potential
harm to a company’s reputation that may result from involvement in
one of these decisions. In light of the risks, what should employers
do (and not do) in order to avoid liability for a botched investigation? Here are some tips:
• Keep an open mind.
• Always respond to the complaint in some form and in a timely
• Do not minimize the complaint or any illnesses the complainant may suffer from as a result of the incident giving rise to the
• Clearly inform the respondent what the investigation is about.
Give particulars of the allegations to the respondent in advance
of any interviews about the allegations.
• Offer EFAP services (if available) to the complainant and
• If the workplace is unionized, comply with the CBA (Is there
a joint investigation clause? Is there a union representation
• Defi ne the investigators mandate – Fact fi nding only or recommendations as well?
• Ensure no close relationship between the investigator and the
• Consider whether to engage an external investigator: Appropriate
where bias is a concern, or where the issues are particularly
complicated or sensitive.
• Consider whether you want legal privilege to attach to the
investigation: Dominant purpose of your retainer with a lawyer
must be for the purpose of seeking legal advice
• Develop a comprehensive witness list.
• Use two person interview teams.
• Tell everyone interviewed that the investigation is confidential
and that any retaliation will not be tolerated.
HUMAN CAPITAL O SUMMER 2013 O 43
Table of Contents for the Digital Edition of HUMAN Capital - Summer 2013
What's Next for HR? Trends and Competencies
The Emergence of HR Shared Services
The Future of HR Shared Services
Linking HR Strategy to Business Strategy
How Google is Using People Analytics to Completely Reinvent HR
CHRP Credibility on the Rise
Looking to the Future: What Will Make HR Successful?
Games People Play: Shaping a Strategic Workforce
Suppliers Guide/Index to Advertisers/Advertisers.com
HUMAN Capital - Summer 2013