Conducting Lawful Workplace Investigations: When Ignorance Isn

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Conducting Lawful Workplace InvestigationsWhen
Ignorance Isnt Bliss

• Jeffrey E. Goodman, Sonia Regenbogen, Sarah E.
  GravesHeenan Blaikie LLP

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Agenda

• Introduction and Overview
• Preparing for an Investigation
• Hot Topics
• Social Media
• Privilege
• Latest Developments
• Conducting Workplace Investigations

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Agenda (Cont.)

• Developing Effective Interview Skills
• Key Issues in Different Investigations
• Human Rights
• Just Cause / Fraud
• Health and Safety
• Reaching Conclusions and Reporting
• Questions Answers

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Fact Pattern Review

• Background

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• Preparing for an Investigation

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When is an Investigation Necessary?

• Human rights legislation
• Duty to provide discrimination-free workplace
• Do you need a complaint?
• Termination for just cause
• Policy violation/compliance issue
• Criminal or regulatory wrongdoing
• Occupational health and safety
• Accident, bullying, or violence

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Planning the Investigation

• Decision-makers are increasingly scrutinizing
  investigations
• Dont expect perfection, but reasonableness
• Training?
• Bias?
• Plan, plan, and then plan some more!

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Planning the Investigation (2)

• Big Picture Items
• Identify the allegations
• What specific issues are raised?
• What laws are implicated?
• What policies and practices are implicated?

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Planning the Investigation (3)

• Example Complaint
• Mr. L looks at me and says angrily, you want a
  day off? I calmly say, Yes. He forcefully
  grips my left arm below the elbow, twisted it and
  jerked it to apply pressure, to throw me out of
  the bakery, while screaming irately, get
  out!
• No identification of workplace violence issue
• Recommendation Mr. L should be counselled on
  how to handle this better.

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Planning the Investigation (4)

• Big Picture Items (Cont.)
• Special skills required?
• Forensic accountant, IT specialist, etc.

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Planning the Investigation (5)

• Big Picture Items (Cont.)
• Internal or external investigator?
• Who will oversee the investigation?
• In-house, external, or even independent counsel?
• Collective agreement constraints?

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Planning the Investigation (6)

• Evidence and Privilege
• Privilege takes planning
• Critical role of counsel, in-house or external
• Identify the evidence/information you will need
• Oral?
• Physical?
• Created?

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Planning the Investigation (7)

• Evidence and Privilege (Cont.)
• Preservation of evidence
• Litigation hold to ensure documents not destroyed
• Understand document retention policy
• Beware spoliation of evidence allegations
• Remedy adverse presumption
• Ensure safe storage of evidence

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Planning the Investigation (8)

• Parties and witnesses
• Confidentiality
• Order of interviews
• Location of interviews
• Administrative suspensions? (with pay)
• Reprisal

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Key Issue Unions and Investigations

• Is the investigation procedure incorporated into
  the collective agreement?
• Directly, referentially, LOU?
• Necessity of shop stewards participation?
• Different for complainant, respondent, witnesses
• Conflict when both complainant and respondent are
  represented by the same union

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Who Should Conduct the Investigation?

• Internal
• Minor issues that can be resolved without
  discipline or sanction
• Policy violations that wont result in liability
• External
• Violations of law or policy exposing company to
  civil or criminal liability
• Ick factor
• Complaint involves senior management

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Role of In-House Counsel?

• As investigator
• Can in-house counsel be perceived as completely
  objective and independent?
• As advisor to external investigator
• Someone who knows the ropes
• As advisor and counsel to internal investigator
• Groundwork for privilege

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Fact Pattern Review

• Who Should Conduct the Investigation?

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• Hot Topics

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Investigations in the Age of Social Media

• Privacy Issues
• R. v. Cole
• If personal use of work computer permitted, then
  reasonable expectation of privacy
• Policy may diminish, but not erase, expectation
• Was subjective expectation of privacy objectively
  reasonable? Info near biographical core?
• Charter-bound employers reasonable basis?
• Private employers some basis? (not 501)

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Investigations in the Age of Social Media (2)

• Facebook comments on-duty or off-duty?
• Re Alberta Health Services (Arb)
• Respondent makes unflattering comment about
  Complainant in public photo
• Complainant disrespects Respondent publicly
• Respondent responds aggressively in private
• Complainant files sexual harassment complaint
• Inconclusive about whether conduct on- or
  off-duty
• Investigation overlooks nuances of Facebook

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Solicitor-Client Privilege

• Three-Part Test
• Communications concerning
• Legal advice
• Where client intended communication to be
  confidential and
• Communication must not have had an illegal purpose

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Solicitor-Client Privilege (2)

• Necessity of legal analysis and opinion?
• R. v. Bruce Power (OCA)
• No legal strategy/opinion in internal accident
  report
• BUT fact prepared at request of ext. counsel
  retained right after accident established S-C
  privilege
• Also highly prejudicial items in report indicated
  intent that report be covered by S-C privilege
• Compare, Re North Bay General Hospital (Arb)
• Absent advice, fact-finding conducted by person
  who happens to be lawyer does not create S-C
  privilege

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Litigation Privilege

• Two-Part Test
• Protects documents and work product
• Prepared for the dominant purpose of litigation
  and
• Where litigation is pending or reasonably
  anticipated

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Litigation Privilege (2)

• Dominant purpose of litigation?
• BMO v. Tortora (BCSC)
• Alleged fraud external counsel retained fraud
  examiner to investigate findings led to
  dismissal
• Employer refused to disclose report, claimed
  privilege
• Court litigation privilege protects only those
  documents prepared after decision to terminate

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Litigation Privilege (3)

• Dominant purpose of litigation? (Cont.)
• Re Peel District School Board (Arb)
• Teacher suspended during investigation when guilt
  materialized investigation continued for two
  years
• Union demanded disclosure of investigation notes
• Arbitrator while litigation reasonably
  anticipated after suspension, dominant purpose of
  notes were for investigation, not litigation

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Waiver of Privilege

• Inadvertent Waiver vs. Judicial Fairness
• Fernandes v. Marketforce Comm. (Ont. SCJ)
• Employer accidentally copied employee on e-mail
  to lawyer about its desire to fire her
• Employee claimed wrongful dismissal as a result
• Motions Judge Appeal E-mail was S-C
  privileged, but it affected state of mind and
  was catalyst for wrongful dismissal action
• Unfair to deny remedy

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Latest Case Law Developments

• Adjudicator Reliance on Investigations
• Tribunal may rely on investigation finding that
  some or all allegations unsubstantiated
• Rule 19A summary dismissal hearing
• Hoyes v. Woodbine, 2011 HRTO 578

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Latest Case Law Developments (2)

• Adjudicator Reliance on Investigations (Cont.)
• Tribunal mayalso accept investigation report
  into evidence (on consent), removing need for
  direct evidence
• Newton v. Toronto (City), 2010 HRTO 1023
• City investigation took 6 months, 19 witnesses
• Relying on report, Tribunal held 1 day hearing
  focused on remedy

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• Conducting Workplace Investigations

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The Investigation Process

• General indicia of a sound investigation process
  was the investigation
• prompt?
• thorough?
• fair/appropriate in the circumstances?
• Was the respondent given enough information and
  opportunity to respond?
• Beware The Element of Surprise

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The Investigation Process (2)

• Investigators Responsibilities
• Fair, neutral, open minded fact-finder
• Job is to gather facts, not draw conclusions
• Thorough, organized
• Hallmark of a careful investigation is the file
• Suggestion keep running log of all steps taken
• Professional, direct, responsive
• Know and follow the investigation policy!

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The Investigation Process (3)

• Taking the Complaint
• Define the complaint / incident
• What is being alleged?
• Unpack the complaint / incident
• What specific components/issues need to be
  investigated?

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The Investigation Process (4)

• Taking the Complaint (Cont.)
• Meet with the Complainant and get sign off on his
  or her complaint
• No editorializing!
• Use precise / accurate language
• Record all relevant facts and dates
• Obtain list of proposed witnesses
• Who has what evidence and why?

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Fact Pattern Review

• How Does the Complaint Need to be Clarified?

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The Investigation Process (5)

• Litigation Holds
• Review document retention policy
• Work with IT to ensure no documents are lost

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The Investigation Process (6)

• Establishing Privilege
• Deputizing memo / retainer letter
• Use language indicating advice and/or analysis
• Document protocol
• Mark documents ad privileged
• How to handle drafts, summaries, reports
• Generating work product
• E-mails

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The Investigation Process (7)

• Collecting Physical Evidence
• Collect all documents that may be relevant
• Signed acknowledgement of policy/training
• Notes/reports of prior incidents
• Notes kept by Complainant or others
• Video surveillance, e-mails, photos/social media
• Store in centralized, organized, secure location

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The Investigation Process (8)

• Collecting Oral Evidence
• Consider interview time/location/atmosphere
• Maximize comfort to minimize reluctance
• Goal is to build rapport with interviewee
• Allow sufficient time for interviews
• Typically longer than initial estimate

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The Investigation Process (9)

• Collecting Oral Evidence (Cont.)
• Outline purpose and process of interview
• Address protection from retaliation
• Confidentiality
• Witness statement

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The Investigation Process (10)

• Taking Notes
• Tell interviewee to watch your pen to gauge pace
• Do not let pace/note-taking interfere with
  listening!
• Write legibly
• Record what witness says do not paraphrase
• Do not include commentary or impressions
• Sign and date notes
• Avoid multiple sets of notes per interview

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The Investigation Process (11)

• Taking Notes (Cont.)
• If type up notes afterwards
• Do not add or embellish content
• Do transcribe shortly after interview, and note
  date the transcription took place
• Do not destroy the original interview notes!
• Beware audio recordings chilling effect

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Consequences of Flawed Investigations

• Key Mistakes!
• Failure to act at all or take it seriously
• Failure to train investigators
• Failure to plan
• Poor file
• Not prompt and/or thorough
• Not opportunity to respond
• Failure to keep complainant informed
• No follow-up/decision not implemented

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Consequences of Flawed Investigations (2)

• Impair or prejudice ability to establish
• Just cause for termination / discipline
• Due diligence under OHSA
• Due diligence under Human Rights Code
• Consequences include
• Aggravated, punitive, or Code damages
• Penalties from Ministry of Labour under OHSA
• Reinstatement in unionized workplaces
• Embarrassing reported decision!

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Confidentiality

• Dangerous claims
• Confidentiality cannot always be guaranteed
• Business/investigation needs may override
• Explain information shared only on need to know
  basis
• Ensure witnesses sign confidentiality agreements

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Avoiding Reprisal Claims

• There can be no merits to the complaint, but
  still merits to the reprisal!
• File retention
• After investigation, gather any/all related
  notes, documents, etc. and place in file
• Explain consequences of reprisal to managers

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• Developing Effective Interview Skills

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Practical Interview Skills

• Avoid script, but prepare list of specific items
  looking for from interviewee
• Do not conclude interview before reviewing
• Control the pace and listen actively

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Practical Interview Skills (2)

• Funnel or Pyramid Technique
• Open Phase
• Clarification Phase
• Closing the Door
• Active listening
• Assessing credibility

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Practical Interview Skills (3)

• Open Phase
• Open-ended questions
• Learn all relevant evidence the witness has
• Encourage the witness to talk
• Summarize the answer so witness can give you the
  facts that might have been left out

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Practical Interview Skills (4)

• Clarification
• Get the details W-5
• Try not to interrupt
• React neutrally at all times
• Explore basis for interviewees conclusion

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Practical Interview Skills (5)

• Close the Door
• Get the final answer
• Listen to the witness
• Exhaust the subject?
• Is there anything else?
• Have you now told me everything you recall about?

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Practical Interview Skills (6)

• Before closing the interview
• Confirm details witness has provided
• (Optional) Review notes with witness
• Confidentiality agreement?

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Handling Difficult Witnesses

• Stay calm/neutral to avoid increasing hostility
• Avoid badgering questions
• BUT do not shy away from questions either
• Make it clear that you will end the interview and
  proceed in absence of his/her evidence if
• Witness is highly argumentative
• Witness is obstructive
• Witness refuses to cooperate

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Handling Difficult Witnesses (2)

• Listen actively and neutrally to difficult
  witnesses version of events
• Listen for inconsistencies and challenge based on
  information already obtained
• Do not accept I would never do that
• Ask what actually happened
• If witness avoids a question, make a note and
  come back to it later

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Other Challenges

• What if the interviewee wants a lawyer?

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Other Challenges (2)

• What is interviewee cancels or withdraws
  participation?
• Explain role of investigation in companys legal
  duties and that findings may be made without
  his/her input
• Reaffirm protection from reprisals

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Other Challenges (3)

• The lying employee
• If Respondent, answer is clear
• If witness or Complainant, consider seniority
  (fiduciary?) and impact on conduct of
  investigation
• Remember, no reprisal for having complained or
  participated in investigation only
• No protection for lying throughout same!

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Fact Pattern Review

• What Evidence Needs to be Solicited from Initial
  Interviews?

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• One Size Does Not Fit AllKey Issues in
  Different Investigations

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Human Rights Investigations

• Statutory duty to investigate allegations of
  discrimination and harassment
• Failure to do so will itself result in Code
  liability
• Employer responsibilities
• Policy/complaint procedure
• Training
• Serious, prompt, sensitive, reasonable
  investigation
• Resolution healthy work environment?

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Human Rights Investigations (2)

• Harassment/discrimination investigations call for
  softer skill set
• Purpose often tied to damage control and
  maintaining employee morale
• Witnesses may be reluctant to participate as
  complaints involves managers
• Due diligence and vicarious Code liability

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Just Cause Investigations

• Termination for just cause
• The capital punishment of employment law
• Employer must properly investigate
• To prove misconduct actually occurred AND
• Rebut allegations that termination in bad faith

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Just Cause Investigations (2)

• Just cause investigation can call for a range of
  hard skill sets depending on allegation, e.g.
• Theft, fraud, criminal conduct
• Sexual harassment, inappropriate relationship
• Policy violation, conflict of interest
• Negligent derelict of duty
• Closer the allegation to criminal conduct, more
  vigorously courts scrutinize the investigation

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Fraud Investigations

• Purpose of fraud investigation
• Determine extent of loss
• Stem future losses
• Recover funds
• Build case for just cause
• Look below the ice and expect the worse
• Beware premature accusations can lead to
  destruction of crucial evidence

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Fraud Investigations (2)

• Role of Forensic Accountant
• Independent/unbiased
• Where fraud suspected, can investigate under
  guise of internal control evaluations
• Expertise in conducting investigation with
  criminal proceedings in mind (protecting
  evidence)
• Expertise in giving testimony, writing reports

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Fraud Investigations (3)

• When to terminate for fraud?
• Strong, defensible conclusions in forensic report
• Employee admits to allegations
• Given implications, courts will demand
• Proof on higher degree of probability
• Evidence of intent, deception or deliberate
  scheme
• Employee given a chance to respond
• Thorough investigation of all given explanations

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Fraud Investigations (4)

• What if participation in fraud not directly
  established?
• Consider termination for cause based on
• Breach of company policy
• Dishonesty (especially if during investigation)
• Breach of trust/revelation of character
• Bottom line can they ever be trusted again?

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Fraud Investigations (5)

• Impact of Police involvement
• Relinquish control of investigation lose ability
  to investigate and resolve matter discretely
• Evidence seized
• Workplace disruptions
• Malicious prosecution risk if exculpatory
  evidence somehow withheld or overlooked
• Query when should Police be contacted?

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Fraud Investigations (6)

• Do not threaten criminal proceedings!
• Criminal Code s. 346 (extortion)
• Pate v. Galway-Cavendish, 2011 ONCA 329
• Risks of investigating fraud
• Malicious prosecution actions
• Punitive/aggravated damages
• Intentional infliction of mental suffering
• Invasion of privacy

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Health and Safety Investigations

• So youve had an accident statutory duty to
• Preserve the scene
• Notify the Ministry of Labour
• Not obstruct the Ministrys investigation(not an
  obligation to self-incriminate)
• Company investigation critical to establishing
  due diligence defence

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Health and Safety Investigations (2)

• Importance of timeliness
• Must preserve physical and narrative evidence at
  time of events
• Information as existed at time of events bolsters
  case for due diligence
• Importance of establishing privilege
• Protect accident investigation reports from
  Ministry collection

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• Reaching Conclusionsand Reporting

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Concluding the Investigation Saying When

• Is the question answered?
• Satisfied that investigation is
• Procedurally defensible?
• Substantively defensible?

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Credibility Determinations

• Does the interviewee have
• Direct or indirect knowledge of matter?
• Any motive to misrepresent information?
• Look for
• Contradictions with own or other versions of
  events
• Changes in story, no matter how minor
• Methods to independently verify story

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Credibility Determinations (2)

• Dont underestimate gut reaction!
• Your gut may pick up on subtle things like
• Body language
• Eye contact
• Hesitation in delivery
• Above all, does the persons story make sense?

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Investigation Report

• Components
• Executive summary
• Background to complaint
• Overview of investigation process
• aka methodology
• Allegations and findings
• Conclusion
• (If mandated) Recommendation

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Investigation Report (2)

• Best Practices
• Just the facts
• No opinions
• No recommendations, unless mandate for
• Inconclusive?
• Assess each allegation separately

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Investigation Report (3)

• Best Practices (Cont.)
• Clearly state how interviewee came by his/her
  knowledge of matter
• Be sure all relevant evidence is considered
• Keep your audience in mind

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Common Mistakes in Report Writing

• Omitting reference to evidence because of view
  that not relevant
• Forgetting to show your work
• Connect each dot for the reader
• Letting value judgments opinions infect analysis
• e.g. Helena is an admitted cocaine user
  therefore its clear that

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Common Mistakes in Report Writing (2)

• Over-emphasis on similar fact evidence
• Over-emphasis on character evidence
• Red flag for evidence of bias or prejudgment
• Acknowledge existence of both, but let facts
  discovered in this investigation speak for selves

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• Questions?

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Thank You!

• Jeffrey E. Goodman, Partner
• JGoodman_at_Heenan.ca
• Sonia Regenbogen, Partner
• SRegenbogen_at_Heenan.ca
• Sarah E. Graves, Partner
• SGraves_at_Heenan.ca