Authors: Fiona H. McFarlane

Two 2018 decisions in British Columbia – one from the BC Labour Relations Board and one from the BC Supreme Court – provide workplace investigators with some good insight into what makes a good workplace investigation.

Member Paul Love’s March 2018 decision in Western Forest Products Inc. v. United Steelworkers 1-1937, 2018 CarswellBC 826, 135 C.L.A.S. 85 is particularly interesting because it highlights the prejudicial nature inherent in using the fact of, and findings from, an earlier investigation in a later investigation.

In Western Forest Products Inc. v. United Steelworkers 1-1937, the Respondents were the subjects of a workplace investigation three months before the workplace investigation at issue in the grievance before Member Love. The earlier investigation, conducted by an external workplace investigator, considered whether there was a hostile workplace and resulted in discipline for the two Respondents. An internal investigator conducted the second investigation investigator which considered a new employee’s allegations of harassment and bullying. One of the many problems Member Love found in the conduct of the second investigation was the internal investigator reliance on her own feeling about the Respondents’ evidence and how it was like their evidence in the earlier investigation to reconcile differences in testimony between the Complainant and the two Respondents. The internal investigator prejudged the information received from the Respondents, in particular, the evidence from the Respondent who was found to have been untruthful in the earlier investigation.

Member Love identified a number of other problems with the investigation, including:

  • Lack of notification to the Respondents that they were subject of a second workplace investigation and failure to notify the Respondents of the harassment and bullying allegations being investigated. Both actions breached the Western Forest Products’ policy on workplace harassment, in particular how to conduct an investigation.
  • Poor note taking by the internal investigator who did not record what questions she asked and any introductory comments that she made; and
  • Failure by the internal investigator to canvass all issues with the parties and solicit whether there were any witnesses. Doing so, according to Member Love, would have uncovered information not disclosed by the Complainant that explained the Complainants motive for filing her complaint.

After cataloguing the problems he found with the investigation, Member Love concluded that it was “an investigation by ambush, in the context of a complete breach of the policy and procedural fairness”.

The BC Supreme Court more recently decided that an employee was unjustly terminated without there being a proper investigation into the employee’s actions.  Justice Branch’s decision in Kerr v. Arpac Storage Systems Corporation, 2018 BCSC 704, dated May 3, 2018, held that Arpac’s Human Resources Manager “leapfrogged over his obligation to investigate and consider less severe forms of discipline of conduct”.  In this case, the plaintiff was told his position was being eliminated and he was working until the official end date for his position. Soon after being informed that he was losing his job, the 71-year-old plaintiff took steps to alter a spreadsheet, forward emails to a personal email address and then delete a number of work emails. As soon as human resources learnt about the plaintiff’s actions, the human resources manager fired the plaintiff for cause.

After reviewing the facts, Justice Branch found that the human resources manager was predisposed to fire the employee because the decision had already been made to eliminate the position. He held that the human resources manager did not ask the plaintiff any questions about what happened, did not ask for an explanation or did not request the spreadsheet and emails to be restored.  It was for these reasons that Justice Branch concluded there was no workplace investigation and Arpac did not show that the employee’s conduct was incompatible with his duties and there was a breach of trust. The result in this case was that plaintiff received compensation for Aprac’s unjust termination.

Key takeaways

  • Reflect on what is a fair process, including the conduct of a workplace investigation, if you are considering taking any disciplinary action against an employee.
  • Your first step should be a review of your workplace policy so that you understand what obligations you have with respect to the conduct of a workplace investigation.
  • Ensure your workplace investigators are sufficiently trained so they can objectively obtain information from the Complainant and the Respondent and then analyze it.
  • Document your workplace investigation interviews, including any introductory comments you make as well as the questions you ask.
  • Be cautious about considering findings made in earlier investigations since they are likely to be prejudicial.