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In a workplace investigation, it is not uncommon for complainants and potential witnesses to express concerns about job-related reprisals before speaking to the investigator. Recently, however, I had witnesses in two separate investigations tell me that they did not want to participate for fear of being sued by the respondent, with one witness specifically referencing a possible claim of defamation. While it is never the role of the investigator to give legal advice to a party or witness, their concerns did inspire me to share some thoughts about the issue of defamation in the workplace investigation context.
Generally speaking, defamation refers to either spoken or written communication that tends to injure the reputation of a person referred to in it, in the estimation of a reasonable person. The communication must be made to a third party; must be specifically about the individual, corporation or organization in question; and lastly, must be false and disparaging to the reputation of the individual, corporation or organization.
While at first glance that definition may seem to potentially capture witness evidence, it is important to note two key defenses to claims of defamation: truth and qualified privilege.
While truth as a defense is likely self-evident given the definition of defamation noted above, it is worth discussing further what is meant by qualified privilege. In the context of workplace investigations, qualified privilege exists in occasions where the person making the communication does so without malice and has an interest or a duty to share the information with the person conducting the investigation. In addition, the person conducting the investigation must have a corresponding interest or duty to receive the communication. It is important that all these elements are in place.
In Elgert v. Home Hardware Stores Limited, 2011 ABCA 112, the Alberta Court of Appeal upheld a significant damage award against two individuals who had made allegations of sexual harassment against a colleague, noting: “The jury’s findings demonstrate that they believed (the two employees) lied about the sexual harassment and did so maliciously. Although reporting sexual harassment to an employer is an occasion of qualified privilege, that privilege is lost when there is malice.”
So what does this mean for employers conducting investigations and their employees who are being asked to participate in them? Employers should note a few key considerations:
- Given the definition of defamation and the fact that truth can be a defense to a claim, complainants, respondents and witnesses should be reminded of the importance of speaking honestly during their interviews with the investigator.
- Employers should ensure that they have policies and procedures that clearly outline their internal investigation processes and the duties of their employees and investigators within the process. Such policies and procedures will support the assertion that an employee had a duty to share their allegations and the person tasked with investigating the matter had a duty to receive them.
- Information provided by the parties and witnesses, as well as the investigation report, should be treated confidentially and should only be shared with people in the organization who have an interest or duty to receive the information. In doing so, organizations ensure that the information is not shared in a manner that falls outside the occasions in which qualified privilege applies.
By taking these actions, employers will help to ensure that claims of defamation flowing from a workplace investigation will be difficult to establish and will rarely be successful. Accordingly, they should not be a source of intimidation that discourages participation in the process.