There are countless ordinary employees finding themselves in the eye of that storm every day. Employers are legally obligated to perform workplace investigations in a variety of situations. Investigations typically analyze the accident, harassment allegation, or other employee actions allegedly contrary to policy or company interests. The vast majority of times, those investigations are conducted by the human resources department or someone else internal.
And for good reason: They already know the players, the policies and the corporate culture and are much less expensive then third-party investigators who can charge six figures for a single investigation.
But when an investigation takes place, who calls the shots?
Statutes generally dictate when and how investigations must take place. But they do not provide any granular detail, often only vague directions, and expect employers to use their judgment to fill in the holes.
One such gap that employees often ask my firm about is the right to have a lawyer present when they are interviewed.
Many employees, perhaps having seen that “right” exercised on television, firmly believe this right exists. It does not. That is, unless the employer uses a lawyer, another reason why one should never use a lawyer as an investigator.
Other than that, the only way such a ‘right’ could exist is if the company created it in their own internal policy – and I seldom see employers shoot themselves in the foot so foolishly.
Some lawyers argue for an expansive ‘duty of good faith and fair dealing’ that would give employees a right to insist on counsel being present. Such a right has never been recognized. An employer does not have to deal with employees through lawyers – it is that simple.
Employees lack many other rights they imagine themselves having during an investigation – another common example being the right to receive written questions in advance.
What if an employee insists on their counsel being present, or refuses to attend without receiving questions in advance? Such insistences will be met with a justifiable charge of disobedience for refusing to attend the meeting without justifiable reason. It would be no different than any other situation in which an employer requests an employee’s presence at a meeting, and the employee refuses to attend without conditions of their own.
Such a rash refusal to comply with your boss’s directives is a sure-fire way to get fired – likely for cause.
Look at it from management’s perspective – providing questions in advance likely frustrates the very purpose of the investigation.
What about the right to record an investigation? Again, the answer is no. It’s true that it is not contrary to the Criminal Code to record a conversation in which you are a participant. But that fact is often misunderstood as a positive right to record others in the workplace.
In fact, many employers will rightly see such behaviour as a breach of the duty of loyalty and a violation of privacy expectations in the workplace. Would you want to work with somebody who is potentially secretly recording you? Again, asserting such a ‘right’ may well lead to that employee’s termination.
All that said, employers must be careful not to discourage an employee from consulting with a lawyer under any circumstance, which includes investigations.
The Supreme Court of Canada made this point clear in a case brought by Kevin Keays against Honda Canada. Honda made the mistake of telling Keays that hiring outside counsel was a “mistake” and that it “could make things worse.” The Court warned that this undermined the advice of Keays’ lawyer.
Indeed, my firm often fields calls from concerned employee clients faced with complaints and investigations. It is entirely appropriate to seek advice from an expert to understand the legal contours of an investigation, what to expect, how to conduct oneself, and the possible outcomes and how to answer expected questions and what questions to ask in return.
One caveat to the above is the new Workplace Harassment and Violence Regulations introduced this year for federal jurisdiction employees (in the banking and telecom sector, for example). Those regulations do contain a right to be represented during the process. This affects a small portion of Canada’s workforce, but other legislators will surely be watching.
The federal experience will be an interesting petri dish – time will tell whether other jurisdictions across Canada follow suit. My belief is that such a right to representation will add expense for both sides and elongate the process – exactly the opposite of what the new Liberal regulations were introduced to do.
Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Justin Khorana-Medeiros is with Levitt Sheikh.
THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-what-to-do-when-you-find-yourself-under-investigation-by-your-company?video_autoplay=true
