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As external investigators, our investigation ends with the delivery of a written report to our client. These reports always include findings of fact, and an analysis of those findings to determine whether there has been a breach of a policy and/or legislation. Sometimes, our clients will also ask that a report include recommendations for next steps.
The “WHAT,” “SO WHAT,” and “NOW WHAT” stages of an investigation
In our firm, we refer to the fact-finding process as the “WHAT” stage of an investigation, and the policy and legal analysis as the “SO WHAT” stage. The recommendation section in a report is part of the third stage of the investigation process, which we refer to as the “NOW WHAT” stage.2
The “NOW WHAT” stage is an important part of the investigation process. Employers should always carefully consider the elements of this stage, even in those cases where an external investigator has been asked to provide them with recommendations. This is so because a well-crafted and well implemented “NOW WHAT” stage can help rebuild workplace trust and respect that may have eroded before or during an investigation. Following an investigation, participants may feel isolated, hurt, or angry. This can be the result of the misconduct that was investigated, or because the investigation process itself, even if it was well-structured, was stressful and disruptive.
The importance of remorse
If during the “NOW WHAT” stage, an employer is required to deal with findings of misconduct, next steps in the process might include coaching, discipline, or even the termination of the respondent’s employment. One of the factors that an employer should consider when determining next steps in these circumstances is whether the respondent is more like Justin Bieber, who asks, “Is it too late now to say sorry?” or Elton John, who laments that, “Sorry seems to be the hardest word.3”
A recent decision by Arbitrator Vincent Ready discussed the significance of remorse during the “NOW WHAT” stage of the investigation process.
In MTU Maintenance Canada Ltd. v. International Association of Machinists & Aerospace Workers, Transportation District Lodge 140, 2022 CanLII 60953 (BC LA), Arbitrator Ready upheld a termination of employment that occurred after the grievor failed to demonstrate remorse for his aggressive conduct towards the company’s Director of Human Resources (the “Director”). Prior to the company’s decision to terminate the grievor’s employment, an external investigation found that the grievor’s conduct towards the Director created an environment in which she (the Director) reasonably feared for her safety. The grievor’s conduct included yelling and physical aggression. The grievor rejected the findings of the investigator and was “adamant there was a conspiracy to have him fired.” He testified at the arbitration hearing that, “if [he was] put back to work, he would continue his crusade to reveal the toxicity of the workplace and to hold those responsible accountable.” In other words, he showed no remorse for his actions, no understanding of the consequences of his conduct, nor any appreciation that his conduct was inappropriate.
At the arbitration hearing, the employer argued that termination of employment was not excessive given the seriousness of the grievor’s misconduct and his lack of remorse after the investigation. In considering the significance of remorse in determining appropriate discipline, Arbitrator Ready wrote, beginning at page 19:
Taking all reasonable steps to protect employees will not always require that an employee who engages in this type of behaviour be permanently removed from the workplace. In many cases – certainly those involving longer-term employees without disciplinary records – lesser discipline may suffice to hit home the seriousness with which the Employer views this type of misconduct if the employee acknowledges the inappropriateness of their behaviour and shows a willingness to change. In those circumstances, employees ought to be given the chance to demonstrate they can conduct themselves in accordance with respectful workplace principles.
…[F]or this opportunity to demonstrate the ability to change to be meaningful, however, an employee must be able to recognize the unacceptability of their conduct and be committed to changing their conduct. This is not the situation in the present case. Rather, as noted, the grievor in this case “double-downed” on his misconduct by sending numerous emails to managers questioning their involvement in the investigation and accusing the Employer of “systemic discrimination” and a “toxic work environment”. The grievor similarly challenged the investigation process and findings…. These are not the actions of a person who is sorry for their role in conflict, nor do these actions evoke any confidence that such behaviour will cease in future.
Arbitrator Ready found that the grievor’s conduct, coupled with his lack of remorse, had “fundamentally and irreparably” damaged the employment relationship to the point where “reinstatement would be pointless.”
Not all findings of misconduct will lead an employer to consider discipline or termination of employment as a next step in the “WHAT NOW” stage of the investigation process. However, it is reasonable for an employer to expect that an employee, who is found to have breached a policy or legislation, will demonstrate a level of remorse that reflects the seriousness of their misconduct. The degree of remorse expressed should be sufficient to satisfy the employer that the behaviour will not happen again. An employer that fails to take adequate steps to ensure that an employee does not reoffend risks increased legal liability because of its obligation to create a workplace free from harassment and discrimination.4
1 Article title: “Is it too late to be sorry?” Justin Bieber. “Sorry.” Purpose, Def Jam Recordings, 2015.
2 Janice Rubin and Christine Thomlinson, Human Resources Guide to Workplace Investigations, Second Edition (Toronto: Thomson Reuters, 2018), at page 297.
3 Elton John. “Sorry Seems to be the Hardest Word.” Blue Moves, Mercury Records Limited, 1976.
4 Note 2, at pages 383-385.
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