A wor­thy in­ves­ti­ga­tion?

The Daily Press (Timmins) - - NATIONAL NEWS - Howard Levitt

Per­haps the biggest boon­dog­gle in le­gal ser­vices in 2018 is the work­place in­ves­ti­ga­tion in­dus­try. There is a solution, but you will have to read fur­ther for that.

Calling for an in­ves­ti­ga­tion has be­come the de facto po­si­tion for a com­pany to avoid the re­spon­si­bil­ity, let alone the time, of mak­ing an ex­ec­u­tive de­ci­sion. It is also used as a strat­egy to de­lay pro­vid­ing a sub­stan­tive re­sponse when faced with threat­ened lit­i­ga­tion.

Out­side in­ves­ti­ga­tors, and in­ves­ti­ga­tions gen­er­ally, used to be re­served for only the most in­tractable, com­plex sit­u­a­tions in­volv­ing only the com­pany’s high­est of­fi­cers that in­ter­nal staff could not ob­jec­tively in­ves­ti­gate. Be­sides those, in­ves­ti­ga­tions were the pre­serve of hu­man re­sources staff who, un­like out­siders, did not re­quire ed­u­cat­ing on the com­pany’s poli­cies, pro­ce­dures and the idio­syn­cra­sies of its per­son­nel. Now, de­fer­ring to ex­ter­nal in­ves­ti­ga­tors has be­come the de­fault. As well, although full in­ves­ti­ga­tions pre­vi­ously only oc­curred over al­le­ga­tions of the most egre­gious va­ri­ety — gen­er­ally fraud or sex­ual ha­rass­ment — in­creas­ingly, any em­ployee mak­ing a com­plaint about al­most any­thing leads to out­side in­ves­ti­ga­tors be­ing sum­moned.

The law sel­dom re­quires full in­ves­ti­ga­tions. Al­most in­vari­ably, speak­ing to the com­plainant, any wit­nesses, putting the com­plaint to the ac­cused and hear­ing their ver­sion of events will legally suf­fice. Even that is more elab­o­rate than is re­quired in most cases.

Re­gard­less of whether it is legally re­quired, in ev­ery case of mis­con­duct, an ac­cused em­ployee should be ad­vised of the al­le­ga­tions against them and pro­vided a chance to re­spond. Do­ing so con­cretizes the em­ployee’s po­si­tion and pre­vents their in­vent­ing a bet­ter ver­sion of events af­ter speak­ing to coun­sel. It also pre­vents the em­ployer mak­ing the de­ci­sion with­out the nec­es­sary in­for­ma­tion. If the em­ployee lies or re­fuses to an­swer, that can pro­vide the cause for dis­charge the com­pany re­quires.

The two cir­cum­stances calling for an out­side in­ves­ti­ga­tor are: To un­cover sys­temic prob­lems in the or­ga­ni­za­tion to en­sure there is no broader pat­tern of mis­con­duct, and when the per­son ac­cused is so se­nior that no one in­ter­nally has the ob­jec­tiv­ity to in­ves­ti­gate.

But let there be no con­fu­sion. You are not nec­es­sar­ily ob­tain­ing ob­jec­tiv­ity by del­e­gat­ing the task to out­siders. They are equally de­pen­dent on the or­ga­ni­za­tion’s good­will. They are mo­ti­vated to please the mem­bers of the or­ga­ni­za­tion re­tain­ing them and to come to con­clu­sions that will en­sure they are hired again.

Although the law is sim­ple, most in­ves­ti­ga­tions are un­duly ex­pen­sive. I have seen too many cases in which an in­ves­ti­ga­tor, called in to de­ter­mine whether there was cause to dis­charge an em­ployee, charges a mul­ti­ple of what it would have cost to sim­ply ter­mi­nate with­out cause. If it is found that there is not cause for dis­charge, and the em­ployer de­cides the re­la­tion­ships are too frac­tured to con­tinue with the em­ployee, it still must pay full sev­er­ance in ad­di­tion to the cost of the in­ves­ti­ga­tor. The com­pany could be worse off, in­so­far as the em­ployee can now claim they were dis­charged de­spite be­ing cleared and that the in­ves­ti­ga­tion cre­ated a stigma, all cre­at­ing a risk of ad­di­tional puni­tive or ag­gra­vated dam­ages. If the in­ves­ti­ga­tor finds that there is cause for dis­charge, the com­pany is lit­tle fur­ther ahead be­cause the in­ves­ti­ga­tor’s find­ings do not bind a court, which will come to its own in­de­pen­dent po­si­tion. In­deed, the in­ves­ti­ga­tor’s find­ings are hearsay and not even ad­mis­si­ble in court. If the in­ves­ti­ga­tor is the com­pany’s le­gal coun­sel, that coun­sel and his or her firm will then be con­flicted out if there is a law­suit, cre­at­ing ad­di­tional costs for the em­ployer given that new coun­sel must be hired and ac­quainted with the facts.

Do not be­lieve that any in­ves­ti­ga­tion is neu­tral. The fact of some­one be­ing in­ves­ti­gated, by it­self cre­ates such a stigma that the em­ployee’s po­si­tion of­ten be­comes un­ten­able. I have known few cases in which an em­ployee is sus­pended pend­ing in­ves­ti­ga­tion and is ul­ti­mately re­called to work, re­gard­less of the ul­ti­mate find­ings.

In ad­di­tion to costs, prac­ti­cal prob­lems in us­ing a lawyer as an in­ves­ti­ga­tor in­clude that it en­ti­tles the em­ployee, and each wit­ness, to have their own lawyer present dur­ing the in­ves­ti­ga­tion, fur­ther length­en­ing the process, cre­at­ing un­due struc­tural rigid­ity and hav­ing the em­ployee’s lawyer po­ten­tially take the po­si­tion that they need not an­swer ques­tions. If the in­ves­ti­ga­tor is not out­side le­gal coun­sel, em­ploy­ees can­not bring a lawyer and fail­ure to an­swer a ques­tion or to an­swer hon­estly is it­self cause for dis­charge. There­fore, there are ma­jor ad­van­tages to not us­ing le­gal coun­sel.

But if a lawyer is not to con­duct the in­ves­ti­ga­tion, who should? Many of the is­sues re­spect­ing em­ployee mis­con­duct are those of em­ploy­ment law and a non-lawyer lacks that ex­per­tise and can there­fore write a less cred­i­ble re­port. So, if lawyers are un­suit­able for in­ves­ti­ga­tion and non-lawyers are, for dif­fer­ent rea­sons, sim­i­larly un­suit­able, who should be con­duct­ing those in­ves­ti­ga­tions that are nec­es­sary?

The an­swer is so ob­vi­ous that it is al­most shock­ing that this group is so sel­dom used. Who is ex­pert at factfind­ing? Not lawyers, whose jobs are pros­e­cu­to­rial or de­fence ori­ented. Not hu­man re­source man­agers, who do not know the law.

The go-to group for work­place in­ves­ti­ga­tions should al­ways be re­tired judges. They know the law. They have the cred­i­bil­ity and they spend their ca­reers hear­ing ev­i­dence and mak­ing find­ings of fact. With many judges hav­ing left the bench and gone into pri­vate me­di­a­tion/ar­bi­tra­tion prac­tices, there is a le­gion of judges, many of whom have both crim­i­nal and civil back­grounds, with con­sid­er­able em­ploy­ment­law knowl­edge. Iron­i­cally, their fee struc­ture is also gen­er­ally lower than coun­sel’s and, at the end of the day, if your case goes to court and the judge or ar­bi­tra­tor hear­ing the case knows that one of their brethren/sis­ters made cer­tain find­ings, they can­not but be in­flu­enced by it.

It is not just what hap­pens at trial. If a com­pany is speak­ing to its stake­hold­ers, whether they be its em­ployee base, other ex­ec­u­tives, their board or third par­ties, who is go­ing to ques­tion the com­pany’s con­duct in fol­low­ing the rec­om­men­da­tion of a judge?

None that I can think of.

Getty Imag es

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