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January 25, 2021

Workplace investigations in the time of COVID-19

By Dayna Steinfeld

With news of a workplace investigation into harassment at Rideau Hall dominating the headlines, many employers and employees are left with questions about workplace investigations. One of the most pressing questions is if and how workplace investigations should be done during the COVID-19 pandemic.

For context, “workplace investigation” is a broad term that covers a variety of inquiries, both formal and informal, into disputes, conduct issues, policy breaches, and harassment and respectful workplace complaints in the workplace. These investigations are an important part of resolving a wide variety of workplace issues, allowing for the health of the workplace and those in it.

The short answer to the question of if workplace investigations should be done during the pandemic is yes. The pandemic presents a challenge for conducting workplace investigations, but such investigations should nonetheless proceed. Workplace investigations should be undertaken in a timely manner, to ensure that the memories of witnesses are as accurate as possible and that any relevant documents are preserved, and as a matter of fairness.

A central tenet of workplace investigations is that they must be fair — undue delay in commencing and completing an investigation will not meet the necessary standard. Moreover, a prompt investigation may be particularly important if there are safety concerns or serious conduct issues involved. The circumstances of the pandemic will not mitigate this requirement, including if the results of an investigation are sought to be relied upon in upholding any corrective or disciplinary action undertaken.

Workplace investigations serve a number of important purposes. For employers, these investigations may be necessary to comply with legislative requirements or, in a unionized workplace, a collective agreement. They are a key step in addressing harassment, discrimination, and bullying in the workplace. Further, workplace investigations are a means of fact finding regarding disputes, conflict, and conduct breaches involving employees.

For employees, workplace investigations are a means to raise and address issues experienced in the course of employment. They provide a procedure for the protection of employee rights and safety in the workplace. And, for those employees who are the subject of the investigation, a properly performed investigation promotes fairness and an opportunity for a full review of all facts — a chance for the employee to tell their side of the story.

For all of these reasons, workplace investigations should proceed notwithstanding the ongoing COVID-19 pandemic.

The “how” is the more challenging question. Public health orders and physical distancing requirements make it more difficult to proceed with an investigation, but the necessary steps can be adapted to allow investigations to occur even in these unprecedented circumstances. The way forward is to keep in mind the following principles: thoroughness, impartiality, and fairness. When guided by these principles, a proper investigation can still occur during COVID-19.

Considering these principles will inform whether the investigation should be performed internally, such as by human resources professionals in the workplace, or externally by a qualified workplace investigator, such as an employment lawyer. This question is no less important during the pandemic. Once the identity of the investigator is determined, the investigator will decide on a process. For example, depending on the public health guidelines in place at the time, the investigator may arrange for physically distant in-person witness, complainant, and respondent interviews, or may schedule virtual interviews using video conferencing technology.

There are pros and cons to virtual interviews. Video-conference interviews may be easier to schedule, given that there is no need for travel/commuting or booking physical space. As well, those being interviewed may be more comfortable at home. At the same time, it may be more difficult to ensure the privacy of the interview and the investigator should discuss with each person being interviewed the importance of finding as confidential as possible of a space for the interview. As well, the investigator’s assessments of credibility and ability to build rapport with the interviewees may be more challenged. Being aware of these additional difficulties with the process may support the use of an external investigator to ensure that thoroughness, impartiality, and fairness can be achieved in the investigation despite the challenges of COVID-19.

Fillmore Riley’s experienced labour and employment lawyers can assist with workplace investigations. We are available if you are an employer looking to retain a workplace investigator. We can also provide advice to employers who are assessing workplace issues and the questions of whether and how to proceed with a workplace investigation. We have experience in guiding employees and professionals who are complainants, respondents, or witnesses in workplace investigations.

We are available.

Fillmore Riley’s employment law practice continues to be available to assist Manitoba employers with their response to the COVID-19 pandemic. Our key contacts are:

David Simpson

Curran McNicol

Mark Newman

Celia Fergusson

Jenna Seavers