Employee Rights in a Workplace Investigation

Most people working in larger organizations have probably seen the following scenario, either from near or from far:

A co-worker has filed a complaint with human resources. We may know who the complainant is, but most likely their identity is kept anonymous to protect against retaliation. One by one, a human resources manager brings in witnesses to answer questions with a view of proving or disproving the complaint or ‘building a case’. Inevitably, the subject of the complaint will be asked to participate in one or more interviews. The conversation lacks context and the respondent is asked vague questions about past conduct. When the respondent provides a definitive answer, the interviewer ominously asks “Is there anything further I should know”, or even worse “Are you being completely truthful?”

All of which begs the question: if ever asked to participate in a workplace investigation, what are an employee’s rights?

investigator

To begin, it is important to distinguish (as is often the case) between the unionized and non-unionized worker. The unionized worker will often have rights built into the collective agreement, including a right to representation and freedom from self-incrimination. The same is not necessarily the case for non-union workers, and in this post we will focus on non-union, private sector workers.

Is there a right to procedural fairness?

Many people understandably believe that if they are the subject of an investigation or a complaint, there must be a right to basic procedural fairness. In other words, there must be a right to respond to your accuser, to fully understand the facts presented against you and maybe even to review the evidence gathered by the investigator. At a minimum, there is a right to provide a full and complete response, right?

Wrong.

In fact, with very limited exceptions, non-union workers have no inherent right to procedural fairness or natural justice in the employment relationship. As has been recognized time and time again by our courts, an employee may be the subject of an investigation and even terminated without being informed of the reasons or being provided an opportunity to respond in their own defence. Rather, the employee will have contractual rights, and as I have previously said in my blogs, contracts can be broken at any time and for almost any reason, provided appropriate compensation is paid.

Do I have an obligation to participate? Can I refuse to answer questions?

If I’m asked to respond to questions concerning a complaint, can I simply refuse to answer?

The short answer – not likely.

Employees have a duty to obey the lawful and reasonable instructions of their employers. To that end, if instructed to sit down and answer a series of questions being presented by an investigator, the expectation is that the employee will do so. If they refuse, it could be viewed as insubordination. The employee will also likely hear the haunting refrain of “if you don’t answer, we will base our decision on the information we have before us”.

Given this, I often tell employees in this situation to participate in the investigation and to explain themselves. However, employees also owe a duty of honesty towards their employer, and therefore any answers must be truthful, candid and non-exaggerated.

Can I have a lawyer or someone else present?

If I’m being asked to participate in an interview, more likely than not there will be two members of management sitting in the meeting with me – one to take notes and one to ask questions. Shouldn’t I also then be allowed to have someone present to take notes, object to improper questioning or advocate for my interests?

Again, the answer is no.

A workplace investigation is not the same as a police investigation where the accused has the right to legal counsel. Rather, unless company policy says otherwise, the company will most likely consider a workplace investigation to be an internal matter which should be kept independent from outside interference. If an employee subject to a workplace investigation asks for a co-worker, an advocate or a lawyer to sit in on the interview, I would fully expect the response to be a resounding ‘no’. In the event that a representative is allowed to sit in on the investigation, my expectation is that they would only be allowed to observe the interview and that they would not be allowed to object, coach or otherwise interfere with questioning.

Takeaways

If all of this makes workplace investigations sound remarkably lopsided, you are correct. Ultimately, workers may be required to participate in questioning without any substantive procedural rights. This creates a power imbalance which rarely serves the employee.

The counter-balance to this authority is that if an employer elects to terminate an employee following an investigation for just cause, they continue to carry a very high burden of demonstrating that the employment relationship can no longer viably subsist. So while the employment contract can be broken, in most cases the employee will be entitled to some form of compensation for the loss of their job.

At Kent Employment Law, we promote sustainable employment relationships. We believe that these relationships are mutually beneficial to employers and employees alike, and are founded on a relationship of trust and respect. If you have questions concerning workplace investigations, please contact one of our offices.

David M. Brown
Kent Employment Law
236-420-1946
david@kentemploymentlaw.com
LinkedIn: https://ca.linkedin.com/in/davidmjbrown
Twitter: @davidmjbrown

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