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Imagine this nightmarish workplace scenario: You are suddenly suspended from your job and told that you are being investigated for allegations of misconduct. You are given few details except that an outside investigator, who is a lawyer hired by your company, will contact you shortly. You are instructed not to speak with clients or colleagues, who are not told why you have suddenly disappeared, and your access to your work e-mail, voicemail and documents is cut off.
From where I sit, a workplace misconduct investigation is becoming a more common occurrence for Canadian workers in response to an ever-increasing culture of workplace complaints such as bullying, harassment and discrimination, among others.
However, for workers accused of misconduct and placed under investigation, which often involves being sent home and then testifying in response to an alleged code of conduct violation, the seeming presumption of guilt often makes them feel as if they are the victim. Accordingly, I am seeing a noticeable rise in calls from clients who are seeking advice in this scenario.
What are your legal rights if you are placed under investigation at work, and how can you prepare and respond?
Can you refuse to participate or answer questions? Employers have a duty to conduct a workplace investigation when complaints are made or when other issues of misconduct or policy violations arise. Therefore, generally you are required to answer all questions put to you during the process, including questions that may appear irrelevant or those that require you to disclose or admit to unsavory conduct.
Further, refusing to answer questions during an investigation implies that you have something to hide and enables an investigator to draw adverse inferences about your behaviour.
What if you are not truthful during the process? Some employees panic and falsify a story to save face. If you are caught lying during an investigation, then it is almost always cause for discharge without severance, even if the original claims against you would not have led to that result.
Can you be suspended during the investigation? If your continued presence at the workplace is likely to cause further harm (such as where there is genuine fear of reprisal or harm to other employees), then paid suspensions may be justified.
However, there are instances where employers use a suspension strategically, to humiliate workers and make it too awkward for them to ever return. In these cases, I often counsel workers to protest the suspension immediately and demand reinstatement. Doing so can also help to provide ammunition for a future legal claim.
Must you be treated fairly during the process? A credible investigation should be performed fairly, meaning the process should be impartial and the results not prejudged. Workers should know what policies or codes of conduct are alleged to be violated, be given a clear written summary of any allegations made against them and an opportunity to provide a full response.
However, aside from conducting what should appear to be an unbiased review, employers have plenty of leeway. They can draw whatever conclusions they want from that process and administer discipline in their discretion. While non-union workers do have the right to challenge a dismissal without severance by launching a lawsuit, they cannot block their employer from imposing discipline or terminating their employment based on the findings of a workplace investigation.
Can you challenge an investigator’s findings in court? Yes. A judge is not bound by the determinations made by your employer or a third-party investigator. Rather, in a legal claim, a judge should observe witnesses, review all the evidence and come to an independent conclusion, which may well be different than what your employer claims.
However, keep in mind that challenging the employer’s decision, even if it is incorrect, publicizes whatever it was you were accused of. In some cases, securing confidentiality around the reasons for your departure is far more important than any amount of severance.
Do you have a right to have a lawyer present? If the investigator is a lawyer or if the employer has a lawyer present, then yes. Even in other situations, you should carefully consider requesting the presence of your own lawyer. If the employer or investigator refuses to allow it, then make it clear you are uncomfortable proceeding without your counsel present. Your lawyer will not be permitted to participate in your investigation meeting, but his or her presence is intended to demonstrate to the company that you intend to fight any negative consequences and this may cause it to reconsider how it deals with you, and if you are fired, how much severance you are offered.
When should you consult legal counsel? The moment you learn there is an investigation against you. I am regularly consulted after workers have participated in the process and given their evidence. This is often too late. One of the first steps I take when hired to assist individuals in this situation is to clarify with the employer, or investigator, exactly what my client is accused of and then how the process will unfold. Doing so also provides time to shore up my client’s story.
Do you have recourse if you are innocent? If a co-worker files a complaint against you in bad faith or for ulterior motives, then that person can and should be disciplined by your employer, although it is rare. Otherwise, if your employer is blatantly unfair to you during the process or carried out the investigation in a bad faith manner that renders it impossible to return to your job, you may be able to initiate a legal claim for severance and damages for mental distress.
If you are faced with a workplace investigation, you should approach it on the basis that the process is not necessarily neutral or intended to be fair; your employer may be building a case against you and your job may be at stake. This is one of the scenarios when hiring a lawyer early on in the process can help mitigate negative inferences and level the playing field.
Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. He can be reached at Dan@canadaemploymentlawyer.com.