May 23

Representation Workplace Investigation

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Are Employees Entitled to Have Legal Counsel Present during a Workplace Investigation

In the course of a workplace investigation emotions can run high. Often, the accused employee is unsure how to respond and is nervous of the outcome of the investigation. Where issues of harassment or fraud are concerned, the consequences of a finding of misconduct can be severe.

While a workplace investigation isn’t on par with a criminal investigation, the question remains: should employees be entitled to have their legal counsel present throughout the investigation?

The Law

The difference tends to be whether that employee is unionized or non-unionized. While a unionized employee can be entitled to representation during an investigation, it is dependent on whether or not the collective agreement allows for this (TELUS Communications Inc., 2009 CIRB 482).

Non-unionized employees do not have this advantage typically. However, a contractual clause can allow for representation to be required/ present at a workplace investigation, and it is typically best for an employer to allow this. The consequences of a challenged investigation can call a dismissal into question should the investigation be found to have been unfair.

The consequences of not conducting an “adequate” investigation can be severe. In van Woerkens v. Marriott Hotels of Canada Ltd., 2009 BCSC 73 (CanLII), the court noted that, “an employer that fails to conduct an adequate and fair investigation into an allegation of sexual harassment or other misconduct and does not afford the employee a reasonable opportunity to respond to the allegations of misconduct, runs the risk that it may not be able to discharge the burden of establishing cause for dismissal.”

While the Plaintiff’s dismissal in van Woerkens was supported, it was not supported in C.R. v. Schneider National Carriers, Inc. (2006), 48 C.C.E.L. (3d) 153, (ON S.C.) for this very reason. The Plaintiff, who was accused of sexually explicit comments and behavior on the job was investigated by internal representation and was confronted by vague allegations. She was not advised who had made the complaints or what she had specifically been accused of. Prior to the investigation occurring, the complainants had corroborated and had developed a mutual story which the Plaintiff was not aware of.

The investigation was thus found to be inadequate; the Plaintiff was not provided with enough opportunity to respond, and the dismissal was rejected as with sufficient cause.

Conclusions

While the investigation in Schneider was glaringly unfair, the fact remains that had the Plaintiff had legal counsel present the court’s determination may have changed. Legal counsel is a significant advantage to employees and undoubtedly something the court would regard when reaching a determination as to the fairness of the investigation. It is thus something that everyone and not just unionized employers should consider when conducting a workplace investigation.

Advice for Employers

If a workplace investigation into serious allegations is necessary in your workplace, consider offering the employee the opportunity to have legal counsel present at the investigation in order to ensure that a fair result is obtained. An employment lawyer can assist with this, and can also conduct the investigation where desired. Contact Monkhouse Law today for a free consultation.

Advice for Employees

If you were terminated due to the results of an investigation or complaint which you believe was unsubstantiated or unfair, it’s best to consult with a professional. As the cases above demonstrate, allegations of misconduct do not give an employer carte blanche to unfairly interrogate employees. Contact Monkhouse Law today for a free consultation.