Investigating Employee Misconduct

22 mai 2012

( Disponible en anglais seulement )

Author: Clifford Hart

Joe, an employee of 15 years, is caught on surveillance video taking scrap out of the plant, which is in direct violation of company rules. Sally, who is off work and in receipt of short-term disability benefits on the basis that she is totally disabled, is witnessed golfing. And Fred is heard swearing at a customer who is on site.

It’s so clear that each of these three employees have breached company rules, regulations and policies, that there is no need to conduct an investigation, or at least meet with them, prior to imposing discipline. WRONG! Here’s why.

The failure to conduct a proper investigation, which includes meeting with the subject employee (and, if the collective agreement requires it, a union representative) has both legal and practical consequences. Arbitrators, judges and other adjudicators have stated that employers should adhere to the principles of procedural fairness when conducting workplace investigations. This includes putting the specific allegations (or suspected behaviour) to the employee and giving him/her a reasonable opportunity to respond. Procedural fairness also dictates that an investigation, which often requires meeting with other potential witnesses, should be unbiased – that is, there should not be a predetermination of guilt. Timeliness is also key – delaying an investigation, among other things, can impact a company’s credibility at a hearing.

On the practical side, neglecting to meet with the employee significantly impacts your ability to: 1) gather all the facts; 2) be made aware of possible mitigating circumstances; and 3) box the employee into a corner from which s/he might not be able to exit.

Back to Joe, Sally and Fred. When Joe is interviewed, he comes clean, but asserts that he has a cocaine addiction for which he needs help. He explains that he has lost his house and is going through a divorce as a result. Your case is no longer as simple as it originally looked. In fact, it has likely transformed from a termination for cause to a need to accommodate a disabled employee.

Sally, on the other hand, vehemently denies that she was golfing, even when it was put to her that the company has reason to believe that she did so on multiple occasions. Months later, at arbitration, she admits to her conduct (defrauding the company). Her failure to acknowledge wrongdoing in the first instance allows the company to argue that she is not to be trusted. Her admission has come too late in the process and gives the company a stronger case at arbitration.

During the course of his meeting, Fred accepts responsibility, but asserts that he was reacting to a racist comment that was directed at him by that same customer. While his conduct cannot be entirely condoned, it is important to understand why he lashed out at a third party. This will impact the level of discipline to be imposed.

So what’s the bottom line? Shooting first and asking questions later does not work in the labour relations context. Rather, due diligence dictates that a thorough and timely investigation be conducted in just about every case of workplace misconduct BEFORE the decision to discipline or discharge an employee is made. The failure to do often results in a negative outcome at arbitration.

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