Howard Levitt: Why workplace investigations are the bête noir of employment law

If you are about to be investigated, assume you will likely not survive

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Workplace investigations are the bête noir of employment law.

They have become the method for employers to sidestep scandal, kick problems down the road, and build up a case against and humiliate employees under the pretence of objective evaluation and due diligence. But make no mistake: pretence it almost invariably is.

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It starts with the suspension of the “accused,” which starts the rumour mills churning as to what misdeeds the apparent miscreant must have committed to deserve that fate, and a clear expectation after a short time that the person will never be returning. That makes it in other employees’ interest to provide the employer with as  much “dirt” on that employee as can be mustered to “please” their employer which, it appears to everyone, must want that employee gone. That, in turn, makes the suspect’s lot untenable. As a result, there is almost no case that I have ever seen where a suspended employee returns to the workplace as, if they do, they feel humiliated, suspect and unable to work comfortably going forward. As I have often written, a workplace “suspension” is never a neutral act.

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The ”investigator” has two incentives. First, to prolong the investigation, hence their fees. (Their employer client often wants this in order that the employee is removed for such a lengthy period that they lose their desire to fight and cannot tenably return, however innocent their conduct). Second, to create a case and produce the report their employer client wishes in order to obtain further retainers and recommendations to other employers/clients.

No employee should ever approach it on the basis that the workplace investigator is objective or neutral. If an employee is being investigated, however apparently trivial the allegations, that employee should be very concerned indeed.

Investigations require little skill or legal knowledge. Yet, six-figure investigation fees are now de rigueur. That is why so many lawyers are abandoning practicing law for investigation work. Less work, little overhead, higher fees.

The investigation reports themselves are meaningless as any court or tribunal must hear the evidence first hand from the relevant witnesses. The investigator’s report or evidence, based on what third parties tell them, is the very definition of hearsay, so it is not producible in court and the investigator cannot provide evidence themselves.

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And if the investigator finds that the person is blameless (which seldom happens for the reasons above), and they are terminated, the employer is saddled with paying wrongful dismissal damages as well as the expensive costs of the investigator. Worse, the taint of the investigation can give rise to additional damages. And if the investigator finds that the employee has committed sufficient misconduct that there is cause for discharge, that finding has no weight with the judge and again, the employee can sue for additional damages for what they have been put through and for the investigator’s findings.

Increasingly, when serious allegations are brought against an employer by a present or former employee, the kind of allegations which would make the front page of this paper, the invariable response has become to “call in an investigator,” allowing the employer to say they have performed their due diligence. Hopefully the employee will hold off on suing and any trouble has been kicked down the road until no one cares about it anymore. Scandal averted.

I had a case recently, acting for an executive of a Crown corporation. It reminded me of all of the horrors of investigations:

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1) The employee was suspended for many, many months, despite the policy of that employer being that investigations had to be completed in the already overly long period of 60 days. This long suspension resulted others having to do the executive’s job while he lost any connection to the workplace;

2) The length of the suspension created further rumours and made it clear to employees that they should assist their employer by “telling tales“ real or imagined about the impugned executive. As well, the business moved on without them, making any return untenable;

3) The employer’s investigator cross-examined the suspended executive for four days. In a court proceeding, a party has a maximum of seven hours of questioning in examination for discovery. Calling it a workplace investigation gave the employer this unlimited right. There was obviously no reciprocal examination by the employee’s representative of the employer. When challenged, the employer’s counsel argued this was not part of the trial process and they were garnering no advantage. I asked them to agree then to not use this four-day examination in any subsequent trial process which, of course, they refused as the very purpose of the investigation was to gather evidence for trial if the employee ended up suing. And it was a full elongated examination for discovery with the employer’s chosen (it is never a mutual decision) investigator gathering evidence to contradict the accused and then continuing coming back to fortify their case. The employee had no procedural protections as they would in a civil action.

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And when I asked if I could have the reciprocal chance to examine a representative of the employer to button down its version of events, that of course was refused as the employer’s obvious purpose was to create a case against the employee with all the unfair advantages the process permitted.

4)The executive was told from the outset that he could speak to no employees about any of the issues so he had no chance to defend himself, learn what others had to say or gather favourable or rebuttal evidence while the employer’s investigator was free to continue building up his employer’s case. Again, advantages entirely inconsistent with the litigation process.

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In the event of litigation, this executive would have one hand tied behind his back as result of the litigation work already done under the ostensible purpose of an “investigation.”

So if you are about to be investigated, assume you will likely not survive but, to enhance your chances and maximize your settlement, retain counsel immediately and never assume the investigator is neutral, let alone friendly.

Howard Levitt is a senior partner of Levitt Sheikh LLP, employment and labour lawyers. He practices employment law in eight provinces and all territories. He is the author of six books, including the Law of Dismissal in Canada.

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