In our last blog, we explored what employers can expect from a workplace investigator during the “investigation” stage, up until the point where an investigative report is prepared and delivered to the employer.
In this week’s blog, we will explore what happens in the “post-investigation” stage, particularly with respect to the next steps after receipt of the investigator’s report.
As noted in our last blog, an employer can expect an investigator’s report to contain a detailed overview of the investigator’s findings of fact, as well as their analysis with respect to whether those findings support a breach of the applicable policies and/or legislation.
In this regard, the report should clearly set out whether the investigator found the complaint to be substantiated, unsubstantiated, or, in very rare cases, made in bad faith (i.e., the complainant knew the allegations were untrue and did so with an ulterior, usually malicious motive).
Regardless of the outcome, the employer will need to make decisions about the appropriate course of action based on the investigator’s conclusions. Depending on the investigator’s mandate, an investigator may be permitted to include recommendations to the employer for next steps. Either way, the ultimate decision-making authority lies with the employer.
In cases where the investigator finds that a complaint is unsubstantiated, it is important that the complainant does not suffer negative consequences. Unsubstantiated allegations, so long as they were not made in bad faith, should not be met with discipline or reprisal. Although not required by law, employers would be wise to meet with the complainant(s) following the investigation to share the findings, thank them for bringing their complaint forward, and reiterate that the organization takes workplace complaints seriously and does not tolerate reprisal of any kind.
If the investigator concludes that the complaint is substantiated, the employer needs to determine the appropriate remedial or disciplinary action to be implemented in the circumstances. In some cases, the appropriate response will be set out in the relevant policies, legislation, or, for unionized employees, the collective agreement. Employers should create a clear and specific plan when implementing remedial or disciplinary action. It is crucial that this plan is well-communicated and the employees involved are well-supported with the necessary and relevant resources to ensure compliance.
It is important for employers to understand that, regardless of the outcome of the investigation, tensions will likely be high, as the incident(s) being investigated often deal with sensitive and emotional experiences for the parties involved. It would be prudent for employers to meet with the parties to remind them of the importance of confidentiality as well as the organization’s policy regarding reprisal, including what steps will be taken in the event an employee is subjected to acts of reprisal.
Questions can arise about the disclosure of the investigation report at the conclusion of the process. This is something that may be addressed in the relevant policies, legislation, and/or agreements and should be dealt with on a case-by-case basis. Typically, the report remains confidential unless a policy, agreement, or legislation requires otherwise. In general, at a minimum, the complainant(s) and respondent(s) must be informed in writing of the results of the investigation and of any corrective action that has or will be taken as a result of the investigation. This does not mean that the parties are entitled to receive a copy of the investigation report itself. Some organizations provide summaries of findings for each party to the investigation, which are typically prepared by the investigator. For federally-regulated employers, the Work Place Harassment and Violence Prevention Regulations Act requires the employer to provide the investigator’s report to the complainant(s), the respondent(s), the workplace committee or health and safety representative, and, in some circumstances, the designated recipient. Whether and to whom the report should or must be disclosed needs to be carefully considered on a case-by-case basis.
Finally, once the investigative process and any remedial or disciplinary processes are completed, it is important to consider retention of the report. One factor to consider is any relevant limitation period for a potential lawsuit by any of the individuals involved. For example, where an individual is terminated as a result of an investigation, the employer would want to retain the investigation report at least until the time for a wrongful or constructive dismissal claim has elapsed. For unionized environments, reference should be made to the relevant collective agreement to determine if there is a different time period prescribed for the retention of investigation reports.
Should you have any questions regarding workplace investigations, please do not hesitate to contact one of our trusted workplace investigators.
