How to Do a Proper Workplace Investigation

A flawed investigation of alleged employee misconduct is a recipe for trouble and can in certain circumstances result in a significant damages award against an employer.

How to Do a Proper Workplace Investigation

A flawed investigation of alleged employee misconduct is a recipe for trouble and can in certain circumstances result in a significant damages award against an employer.

This is illustrated in a number of cases, but perhaps none better than Elgert v. Home Hardware Stores Limited, 2011 ABCA 112, a case in which the employer learned its lesson the hard way. In the wake of a shoddy workplace investigation, the employer was sued by one of its former employees, Daniel Elgert, and in a stunning award, was found by a jury to be liable for two years’ pay in lieu of notice, $200,000 aggravated damages, $300,000 punitive damages, interest and costs. This award was reduced on appeal but still remained substantial.

Elgert was a supervisor at the employer’s distribution centre. He supervised an employee named Christa Bernier. Bernier was the daughter of Elgert’s boss but also a problem employee with job performance issues. When Elgert took her to task, she reacted badly. In the presence of a couple of co-workers, she said she would get even with Elgert and make him pay.

Shortly afterwards, Bernier told her father about an incident that had allegedly taken place. She said that Elgert had followed her up some stairs into a storage room, bumped her against a table and put his legs between hers. Bernier said she yelled and left after another employee entered the room.

When Bernier’s story came to management’s attention, an investigator – who was untrained and inexperienced and a long-time friend of Bernier’s father – was assigned to conduct an investigation. He failed to examine the wider relationship between Bernier and Elgert and did not consider motive and the possibility of fabrication.

To make matters worse, the investigator dealt with Elgert in an accusatory way. Notwithstanding the fact that he had worked at the distribution centre for nearly 17 years, Elgert was suspended from employment, escorted out of the building and not allowed to collect his belongings. He never returned to work. He was dismissed from employment for just cause. Elgert sued for wrongful dismissal and defamation.

The majority of the Court of Appeal made a useful statement to guide employers dealing with allegations of sexual harassment and other employee misconduct:

There is no specific standard of investigation that employers must follow; what is required will vary depending on the facts surrounding the employer, its policies, sophistication, experience and the workplace…

…[H]ow the employer reacts is subject to judicial scrutiny. Its responsibilities do not give it licence to conduct an inept or unfair investigation or behave in malicious, vindictive, or outrageous ways.

Cases like Elgert make it clear that an employer must conduct a workplace investigation which is appropriate and fair in all of the circumstances. Here are some basic pointers to avoid running into difficulties:

  1. Use an impartial investigator. Elgert’s case was prejudged by the investigator and his discharge from employment already a fait accompli.
  2. Apprise the employee under investigation of all allegations against him or her. This is a matter of fairness. It gives the employee the opportunity to hear the allegations and then tell his or her story.
  3. Gather and weigh all relevant evidence, even if you have to interview multiple witnesses, and be sure to meet with the witnesses from both sides.
  4. Make the necessary credibility judgments, and be alive to the inherent dangers of hearsay evidence, motive and the possibility of fabrication.
  5. Keep detailed, accurate records of interviews. Consider asking the individual being interviewed to review and sign any statement that he or she has provided.
  6. Perhaps most importantly, seriously consider hiring a skilled, independent workplace investigator.