Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: Workplace investigations

Complainant, employee, witness or employer, there are certain things you need to know

When an organization becomes aware of a potential problem, such as sexual harassment, discrimination, drug use or trafficking, embezzlement or safety violations, one of the first things to do is to investigate.

Whether you are a complainant, an employee under investigation, a potential witness or the employer, there are certain things to know.

An investigation must be prompt, sufficiently thorough and impartial. It must be sensitive to confidentiality and privacy issues, and avoid defaming anyone. A botched investigation may make the original problem worse.

There are many examples in case law of employers who either failed to investigate, or did so inadequately prior to dismissing an employee. An inadequate investigation typically strengthens an employee’s ability to successfully claim wrongful dismissal.

One example of this occurred in a 2012 B.C. case.

The employer was the BC Liquor Distribution Branch. It dismissed a senior manager without notice from her 30 year employment, after a flawed investigation determined that a complaint against her was well founded.

The complaint was that she had bullied, harassed and intimidated her subordinates.

The Court found that the investigation interviews amounted to interrogations that lacked impartiality. Witnesses were not questioned in an impartial manner. The employee was given no opportunity to respond to the matters raised in the interviews.

Instead of objectively reporting the findings, the investigator’s recommendation memo was replete with inaccuracies. It also attempted to prove the employee was guilty of misconduct that justified dismissal.

The investigator was a labour relations advisor who previously counselled the employee on issues with the complainant. That person was not in a position to investigate impartially. The Court found that the investigator “lost all objectivity. She became the prosecutor, not the objective investigator.”

Others assisted in the investigation but were not adequately briefed.

The Court stated that the interview of the employee was “unfair in the extreme.”

The investigation “was flawed from beginning to end. It was neither objective nor fair.”

The flawed investigation had serious consequences. In their rush to judge the employee harshly, no one paused to put the allegations into context. Instead, a single complaint about a 30 year employee led to dismissal. At the time of dismissal, most of the specific complaints remained unproven.

The Court found that to “treat her in such a manner was egregious, shocking and unnecessary.”

A thorough and fair investigation would have revealed that employee’s management techniques had room for improvement. The employer had courses that could have assisted her, but it chose not to make them available to her.

In addition to damages in lieu of notice of dismissal, the Court awarded the employee $35,000 in aggravated damages and $50,000 in punitive damages.

This employer’s reliance upon a flawed, biased and unfair investigation resulted in significant liability, and the loss of a valuable and devoted manager. This could have been avoided with a proper investigation.

Organizations which become aware of potential wrongdoing should carefully plan the investigation carefully from the outset, to avoid these types of problems. This includes carefully selecting the investigator, and the legal advisor, if legal advice is being sought. Employees under investigation should keep careful records of what is going on. They may be invaluable later on.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

If you would like to reach us, we may be reached through our website, at www.inspirelaw.ca.

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