The smooth and efficient employee and employer relationship rely on each party carrying out their obligations owed to one another. When an employer or another employee suspect there has been a breach of an employee’s duties, an investigation may be necessary. This is a complicated task for employers, as their method and conduct through an investigation must meet the appropriate standards or they may be at risk for substantial liability.
When speaking with employees who have been terminated on allegations of misconduct the first question relates to the allegations and whether it meets the threshold for a termination for cause. Many employers confuse misconduct and poor performance. Misconduct is an intentional wrongdoing that was critical to the employee-employer relationship and threatens the trust between the parties. Poor performance is the circumstances where the employee has not broken a rule but has failed in their requirement to reach a standard in terms of quality or quantity of their work.
The courts have consistently distinguished between actions demonstrating poor judgment, warranting discipline, and actions that hinder the employment relationship, warranting termination.
Once it has been determined that there are allegations of misconduct, the next step is to evaluate the type of investigation that took place and whether it was adequate and reasonable.
When investigating allegations of misconduct there are several principles that should be followed:
The investigator should remain unbiased, fair and reasonable. If there is a workplace policy that outlines procedures for an investigation, it must be followed to aim for consistency. The employee should be provided with full disclosure of the allegations against him or her and have an opportunity to respond. Each piece of evidence should be viewed with a neutral approach, scrutinized, examined for any inaccuracies and weighed accordingly.
Failure to do any of the above may discredit an investigation and create the appearance of bias or unfairness. Thereby opening the employer up additional liability and grounds for a wrongful dismissal.
The requirement of an investigation being conducted by an employer wherein allegations of misconduct exist is illustrated in the case of van Woerkens v. Marriot Hotels of Canada Ltd., 2009 BCSC 73 (CanLII) (emphasis added):
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.
In Roe v. Schneider National Carriers Inc. (2006), 2006 CanLII 532 (ON SC) the inefficiencies in the investigation tainted the results and invalidated the evidence used for termination
 In my view, this was not a careful or thorough investigation. The plaintiff was not given sufficient particulars to enable her to respond appropriately to the allegations and in these circumstances, the defendant was not in a position to properly assess the gravity of her conduct. I have arrived at this conclusion notwithstanding that I found that both Mr. Van Monsiou and Mrs. Stone, the two management people who conducted this investigation, were both honest and reliable witnesses and they work for a company that has a solid reputation in the trucking industry. In my opinion, management tried to be as fair with the plaintiff as their limited experience in this field permitted. They were both inexperienced at dealing with the issues raised in this action and they also lacked the necessary training to do so. I readily acknowledge that the defendant’s management team should not be required to match the standards or practices of criminal investigators. However, basic fundamentals of fair play must be but were not observed and for that reason, the results of the investigation are tainted.
While these types of cases are bringing workplace investigations to the forefront, employers must remember that failure to investigate properly can be quite costly.
As an employer it is important to ensure the correct procedures are always followed especially at the time of termination. If an employer follows the appropriate steps and speaks with an employment lawyer, it may avoid higher liability in the future.
Employees should always speak with a lawyer regarding their termination and determine if they have grounds from a wrongful dismissal and potentially receive monetary damages.
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