The Employer’s Duty to Investigate

posted in: Employer | 0

When does a duty to investigate exist?

What does a workplace investigation require?

By Daniel Sorensen

In many instances, employers are not required to investigate matters. However, employers should be aware of situations where they are legally required to investigate. Additionally, even if not required to do so, employers should be aware that it can often be beneficial to investigate.

So, when are employers legally required to conduct an investigation?

An employer is required to make a meaningful investigation of an apparent human rights violation under British Columbia’s Human Rights Code (as ruled in Bertrend v. Golder Associates 2009 BCHRT 274). Human rights violations include discrimination based on grounds listed in the Human Rights Code including race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, and age. This legal principle also requires employers to investigate in instances where there are allegations of sexual harassment (which is considered a form of discrimination on the basis of sex).

In British Columbia, under sections 172 to 177 of the Workers Compensation Act, an employer must also conduct an investigation where:

1. a worker suffers a serious injury in the workplace;

2. a worker dies in the workplace;

3. there is a major structural failure or collapse of a building, bridge, tower, crane, hoist, temporary construction support system or excavation;

4. there is a major release of a hazardous substance;

5. there is a fire or explosion that could have caused serious injury or death to a worker;

6. a workplace injury requires medical treatment; or

7. an accident or incident could have caused serious injury or death to a worker.

Additionally, the Workers Compensation Act requires employers to investigate all allegations of workplace bullying or harassment.

When an investigation is undertaken, there are also requirements with which such an investigation must conform. Generally, the investigator should be a neutral third party. An investigation must be unbiased and conducted in good faith. The investigation must also be provided in compliance with the employer’s policies and in a reasonable manner. Any accused parties should be given a full opportunity and adequate time to respond to the allegations being made against them. Accused parties should also be given the opportunity to retain legal counsel. To ensure an accurate record is kept, the investigator should keep detailed records of their investigation.

Further, an investigator must bear in mind that an investigation, whether intended or not, can form the evidential basis for other civil or even criminal proceedings. As such, a sloppy or incomplete investigation could potentially lead to unfair results, and potentially even claims against an employer.

While an investigation can sometimes be costly, there are numerous benefits to conducting an investigation. The most obvious benefit is gaining additional knowledge regarding the matter in question. Such knowledge enables the employer to learn about the source of a problem and potential solutions. Additionally, an investigation can sometimes reveal defences to claims being made against the employer as more knowledge becomes known. Further, an investigation shows that the employer takes the matter seriously and wants to take remedial actions. As such, an investigation can actually form part of the employer’s defence to human rights claims and other allegations of wrongdoing. In particular, an investigation can form the basis for a defence against punitive or aggravated damages.

If you find yourself in need of an investigation regarding a workplace matter, please contact us. We have experience with such matters, and can provide you with a detailed and thorough investigation.