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the investigation as this will result in the legal counsel being conflicted
out of representing the company in any ensuing litigation
due to their involvement in the investigation.
The selection of the investigator is critical to the legitimacy of
the investigation and the findings made within it. It is necessary
for the investigator to be thorough, neutral, impartial and free of
bias. The investigator must have the appropriate skills to investigate
the complaint in question, including interviewing witnesses
and evaluating credibility in order to make factual determinations
based upon the evidence collected.
Further, the investigator must be, at the very least, armslength
from the parties involved in order to avoid any real or
perceived bias or favouritism, as allegations of such a nature can
undermine, tarnish and erode the confidence in the findings
of what may otherwise be a valid and thorough investigation.
Selecting the right investigator may also provide the company
with the ability to present an active defence from being obligated
to conduct a further investigation – at the company’s own
expense – pursuant to a Ministry of Labour (MOL) Order
under OHSA section 55.3(1). A MOL-required investigation
can be imposed when an involved party complains to the MOL
as a consequence of being dissatisfied with the results or outcome
of the investigation.
Upon completion of the investigation, the investigator should
prepare a report for the employer of the findings from the investigation
so the employer can determine the appropriate action to
take based on the facts. The employer has a duty to inform the
parties of the complaint – but not the witnesses – the results of
the investigation in writing. Additionally, the employer must also
inform the parties of any corrective action which has been or will
be taken as a result of the investigation.
Using an appropriately trained third-party investigator can
shield the company from allegations that the investigation was
pre-determined, biased or that the investigation was ad-hoc, cursory,
superficial or minimal, while providing legitimacy to the
process and the results. Appointing a third-party investigator –
who has the appropriate skills and accreditation to conduct an
investigation – can protect the company from needing to conduct
a further investigation – and the related expense – as a consequence
of the initial investigation being insufficient in the eyes of
the MOL. A proper investigation can also provide the company
with a defence against allegations that it did not take appropriate
steps or conduct a fair, impartial, thorough, neutral and timely
investigation in any ensuing litigation and shield it from potentially
greater liability. n
Peter V. Matukas is an experienced employment lawyer and a
credentialed workplace investigator by the Association of Workplace
Investigators (AWI-CH) practising in Ontario and leads the workplace
investigations group at Harris + Harris LLP. Please feel free to
contact Peter at 416-798-2722 or firstname.lastname@example.org
with any questions or to discuss your needs.
14 ❚ APRIL 2019 ❚ HR PROFESSIONAL