HUMAN Capital - Summer 2013 - (Page 43)

HR LEGALEASE Do’s and Don’ts of Workplace Investigations 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 increased liability. 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 workplace investigations. Tips for Conducting Proper Workplace Investigations 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 manner. • Do not minimize the complaint or any illnesses the complainant may suffer from as a result of the incident giving rise to the complaint. • 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 respondent. • If the workplace is unionized, comply with the CBA (Is there a joint investigation clause? Is there a union representation clause?). • Defi ne the investigators mandate – Fact fi nding only or recommendations as well? • Ensure no close relationship between the investigator and the parties. • 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

Leadership Matters
Economic Pulse
Association News
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
HR LegalEase
Suppliers Guide/Index to Advertisers/

HUMAN Capital - Summer 2013