Page 15 - CCCA 292467 Magazine_Spring 2019

{ FEATURE }

Workplace

Investigations

tHe eL ePHant in t He r oom

By Luis Millán

Kenneth Jull has done them. so have Paul Klasios and

PhiliPPe dufort-langlois. all are or have been in-house
counsel who have had to conduct internal investigations,
an unPleasant exercise described by some as a bit of a
darK art with a unique set of challenges.

By all accounts, internal investigations have become more There is, however, no bright-line test that determines when a
prevalent in recent years. While they may be triggered by audit workplace investigation should be instigated. Along with the
and compliance reviews, regulatory investigations and media growing numbers of internal investigations launched by corpo-
reports, misconduct is most commonly revealed through com- rate Canada, there is a parallel trend taking root in which em-
plaints or anonymous tips or simply discovered by accident. ployers are looking for ways to deescalate regrettable situations to
avoid initiating formal workplace investigations, particularly with
“There are so many different less grievous interpersonal issues between employees. Such mat-
types of laws that apply,” ob- ters tend to be referred to HR departments, who in turn may refer
serves kirsten Hume scrim- people to employee assistance programs, coaching or training.
sHaw, Founder at Ally Work- Keep in mind this approach can be risky. The case law sur-
place Law. “Common law in rounding workplace investigations barely existed some 15 years
terms of how you treat your ago but is quickly emerging. It seems clear that employers who
employees, human rights law, fail to respond to complaints leave themselves open to costly legal
privacy law, and occupational liability. In what an arbitration panel described as a “tragic case,”
health and safety law—they all an employee of the City of Calgary was awarded $800,000 in dam-
intersect in very specifc ways when it comes to workplace ages in 2013 after her employer failed to adequately investigate a
investigations.” sexual assault complaint. In another case, the Human Rights Tri-

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