Workplace Investigations
Performing a workplace investigation can be a stressful and time-consuming process for all parties involved.
Investigators are tasked with navigating a complex intersection of procedural compliance, people management, employee privacy, and ensuring that the conclusions reached in the investigation (and any decisions regarding discipline or remediation resulting therefrom) are reasonable in the circumstances.
However, it is important for investigators to remember that a proper workplace investigation does not require perfection. Instead, the reasonableness of an investigation and its findings are evaluated on an objective basis.
In other words, the question is not whether the investigation was perfect. Instead the question is whether, based on the information available, was the investigation conducted fairly and could a reasonable person have come to the same conclusion?
Standards for workplace investigations were helpfully reviewed by the Federal Court in its decision of Andruszkiewicz v Canada (Attorney General), 2023 FC 528. In this case, an employee challenged several alleged procedural issues with a workplace harassment investigation. The employee argued the investigator interviewed the wrong witnesses, used flawed methods, took too long, and demonstrated bias. Despite this broad attack, the Court dismissed the employee’s complaints after reviewing the investigator’s process and determining it was fair and reasonable in the circumstances.
The Court’s decision confirmed that investigators are independent professionals who are entitled to reasonably control the investigation process. This includes deciding which witnesses to interview based on the allegations and evidence presented, what questions to ask witnesses, and how to reasonably structure the investigation process in the applicable circumstances.
Practical Tips
Provided a workplace investigator follows an objectively fair and reasonable process, Courts are generally reluctant to second-guess the investigator’s choices or findings. As such, investigators should follow these general principles to ensure their investigation avoids any presumption of bias or unfairness:
- Investigators need to be reasonable, not perfect: An investigation can be adequate without being exhaustive or flawless. Courts will not second-guess reasonable methodological decisions.
- Investigators have discretion: Decisions about scope and process fall within the investigator’s expertise, provided they are made in good faith and are rational.
- Procedural timelines can be modified if doing so is necessary or reasonable: Missing an internal deadline is not fatal if you communicate the need for an extension to the parties involved. The focus is on effort and fairness, not strict compliance with timelines.
- Documentation is essential: Investigators should keep careful and detailed records to support the investigation was conducted fairly and in a timely fashion and that the evidence supports the investigation’s findings.
Conclusion
If your workplace is met with the requirement to conduct a workplace investigation, reach out to your e2r® Advisor to discuss how best to follow an objectively fair and reasonable process in the circumstances.