Workplace investigations have become employment law’s biggest boondoggle.
What employers should do if misconduct is alleged is to put the allegations to the accused, obtain their version of events immediately and then, if necessary, go back to the accuser with that version of events to permit them a chance to respond.
It is then up to management to make a decision. This can all occur usually within the same day, without all of the attendant difficulties of outside investigations.
But extensive and expensive workplace investigations outsourced to lawyers are becoming de rigeur. Their cost almost invariably exceeds any potential value obtained, assuming there is any value at all. Usually there is not.
More egregiously, they are often damaging to both victims and the employer.
If the outside investigator finds that there is no cause for discharge, the employer still has to pay wrongful dismissal damages, on top of the investigation costs. With law firms charging tens, or even hundreds, of thousands of dollars for an investigation, even if there is a finding that there is cause, the cost of the investigation often exceeds it dramatically.
What it would have cost the employer to simply pay wrongful dismissal damages in the first instance and skip the investigation. But even if an investigator finds that there is cause, that is of little interest or probative value to a judge who must independently come to their own decision.
The investigator’s findings are inherently hearsay and the court, not the investigator, still must conduct the hearing, observe the witnesses and ultimately determine whether there is cause. They cannot rely upon the investigator’s conclusion. Indeed, the investigator is not even a permissible witness at the trial. In light of that, what value did the outsourced investigation report have?
Compounding the problem, the investigating law firm is conflicted out from acting at the trial. As result, the extensive legal fees and time spent learning the facts are lost to the employer.
Outside investigators do not know the company, its personnel, policies or corporate culture. That represents an immediate and obvious disadvantage as they take considerable time (and legal costs) simply to get up to date on the basics.
But, it is not just that most investigations are a very expensive waste of time, but that they also can be pernicious and dangerous both to the organization and to the employees making the accusations.
Generally, accused employees are suspended during the investigation, which can take weeks. But suspensions are not neutral. I have seldom seen employees who were suspended during investigations ever returning to the workplace, whatever the ultimate findings are. It is simply too humiliating. But I have seen employees who were suspended suing for the humiliation and implicit aspersions of guilt as result of that suspension.
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Let us view this from the perspective of the victim making an accusation. Take a woman accusing her superior of sexual harassment.
Upon receiving the allegation, the company goes into defensive mode and calls for an investigation. The woman, who had a legitimate lawsuit, is asked to meet with the investigator.
This essentially provides the company with a free examination for discovery and allows it to gain detailed information about the case against it (and the opportunity to prepare a defence) with no reciprocal rights granted to the woman. Rather than being required to take action, the employer is given considerable time, maybe even months of delay, while the ‘investigation’ is ongoing.
And who is the investigator? Someone paid by the employer with an economic interest in obtaining further work, potentially sanitizing the employer in order to please it. This one problem can be dealt with by using retired judges, with actual expertise in fact-finding and a history of independent thought for those rare occasions when an outside investigator is called for.
Meanwhile, the woman making the accusation is left in limbo, not knowing what the outcome will be, working in the environment that oppressed her, and, critically, having no resolution for an indeterminate period of time at a moment of great anxiety.
This is what the workplace investigation industry has, in my view, turned into. Protection for the employer with additional stress and procedural disadvantages for the actual victim.
In one recent sexual harassment case, the employer wished to interview my client without my presence as counsel to protect her.
Although my client had complained about the same harasser in the past to human resources, only to have him harass her again and more profoundly, it refused to provide me details of its short-term disability, and demanded that my client ask questions of human resources directly. My request for answers was met with advice that there would be an indeterminate investigation before it would respond to any demands or inquiries at all, even as a sexually harassed woman twists in the wind.
The question I asked is whether all of this was merely a ploy on this employer’s part or whether management, equally improperly, had delegated the judgment expected of it to a third-party investigator.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. The most recent of his six books is Law of Dismissal in Canada.