January 22, 2019
Author: Dylan Snowdon
What to Do If You Are Being Investigated at Work
Becoming the subject of a workplace investigation is extremely stressful, so it is important to take the time to respond to and participate in an investigation carefully and calmly.
Modern workplace law requires employers to take steps in response to a wide variety of complaints that can be received in the workplace. It is appropriate, and often required by law, for employers to take workplace complaints seriously; particularly where suspicion or an allegation involves:
- harassment or violence;
- discrimination;
- workplace safety issues;
- theft; or
- violations of workplace rules or policies.
A proper investigation will gather information from all relevant witnesses and allow a respondent to hear the information against them and provide a response. The investigation should be confidential and should minimally disrupt all parties involved. However, if the nature of the allegations is serious, it is often a best practice for employers to separate complainants and respondents, which may potentially result in an order to work from a different location.
If You Are Notified That You Are Being Investigated
1) Don’t Panic
Participating in an investigation is stressful, and often takes much longer to resolve than a respondent would like. It is not unusual for an investigation to take several weeks, as it takes time to engage an investigator, clarify the complaint, and meet with all witnesses. Meeting with the respondent is usually one of the last steps before an investigator writes their report and recommendations.
You may want to speak to a counsellor to help manage the additional stress an investigation adds to your life. If your company has an Employee Assistance Program (EAP), it may cover counselling as one of the provided benefits.
2) Gather Information
As the subject of an investigation, you should receive detailed information that will allow you to respond to the allegations against you. Generally, you should be informed of what the complaint is, who brought the complaint, and when and where the alleged actions occurred.
If you are asked to leave the workplace on any type of investigation suspension, or to work from home during the investigation, it is appropriate to ask whether there is a way to safely conduct the investigation that is less intrusive on your work.
If you would like help in managing your part of the investigation, you may consider engaging your own lawyer or union representative. Although an investigator will not allow your representative to drive the investigation, they can ensure you are receiving proper information and that the process is not unfairly impacting your employment.
3) Cooperate
It is in your best interests to cooperate with an investigation and participate as requested. You should provide information to the investigator as requested and attend any meetings or interviews as needed.
If an investigation becomes overly broad by inquiring about your personal life or actions outside of the workplace, you may want to consider asking how the questions relate to the investigation and refusing to answer if they are not reasonably connected to the workplace. Having your own counsel can be useful to confirm when a question is unreasonable.
4) Tell the Truth
It is important you tell the investigator the truth. Withholding information or providing false information can harm your credibility, which can lead the investigator to find that information you provided, which would otherwise have helped you, should not be believed.
The exception to this rule is if you want to talk to a lawyer before speaking to the investigator. In that case you should tell the investigator that you will participate but want to speak to legal counsel first. Speaking to counsel first is especially recommended if you are concerned that you may have committed a crime, and could lead to a recommendation of refusing to answer some questions.
5) Follow Up
If you feel the investigator did not gather all of the relevant information during the interview, you should follow-up in writing to clarify your information and add any necessary facts. Often, witnesses remember events or other witnesses after they have had a chance to reflect on the interview.
If the investigator thinks any information is unclear, they may ask you to return for a second interview.
6) Maintain Confidentiality
Even if you feel a complaint has been falsely made against you, it is important that everyone involved in the process, including you, is protected by confidentiality.
7) Don’t Retaliate
While this should go without saying, you must avoid retaliating against anyone who brings a concern or complaint against you. Employment lawyers see retaliation with surprising frequency. If a false complaint is raised, the company should be addressing it, not you.
Retaliation means any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment, but can also involve less obvious action such as steering work away from the individual or favouring other employees for beneficial treatment.
When Investigations Go Wrong
If your employer does not follow an appropriate investigation process and implements unjustified discipline or otherwise creates harm to you, you may have grounds to make a claim or complaint against your employer. Employers who have failed to follow reasonable and appropriate investigation processes have been found to have breached contractual or fiduciary duties, engaged in defamation, inflicted mental distress, and been negligent. Errors that employers can make in an investigation process include:
- Engaging a biased investigator;
- Failing to gather all relevant information;
- Inadequate documentation of the investigation;
- Not following their own policies and procedures;
- Taking insufficient steps to resolve the issues identified in the investigation.
If you are the subject of an investigation or believe an investigation has been conducted unfairly, contact any of Carbert Waite’s employment lawyers to discuss your rights and options.