LEGAL POST
Steve Paikin might represent a turning point in reaction to #MeToo.
Steve Paikin might represent a turning point of Canadian reaction to the # MeToo movement. Until him, every executive accused, however belatedly or anonymously, of workplace sexual impropriety, has been summarily suspended pending “investigation.”
The problem with such investigations is that no one ever returns. In my 39 years of practice, I cannot recall an employee suspended pending investigation ever returning to work.
Even if they are ostensibly cleared of wrongdoing, the stigma of and rumours flowing from the suspension seals their effective fate.
Many people have decried the current lynching of corporate executives, complaining of the lack of due process. Let me put to rest that misapprehension.
Due process is the preserve of the courts. There is no legal entitlement to due process in the workplace context. Employers are entitled, practically and legally, to determine their own process and analyze whether the continuation of an employee in their workplace is deleterious to their brand. At the end of the day, as long as they do not act punitively to that employee, they have the right to dismiss and pay no more than appropriate severance pay.
That may offend the view of fairness that many have. But it remains the law.
Faced with that reality, employers must choose whether to remove an accused employee from their workforce pending investigation. They should do so cognizant of the impact of the suspension itself. In my view, they should use reasonable judgment in making that decision, such as TVO obviously did with Paikin. The allegation against Paikin is eight years old and is not from a co- worker. There appears to be no suggestion that any of his coworkers ever expressed similar concerns.
When coworkers make allegations of sexual predation, or anything else, it is generally advisable to have the employee leave the workplace so that other coworkers, as well as the accuser, feel comfortable coming forward with their complaints. But that was not the case here and it appears that no other complaints had arisen in the eight years since this incident is purported to have occurred. It appears that TVO concluded that Paikin represents no risk and it would do far more harm than good to provide him with the stigma of a suspension while investigating.
One aspect of these recent corporate near-lynchings is that management has been deferring their investigation to outside “investigators” to provide the impression of independence. Let there be no confusion. These investigators are paid and accept their mandate from the company itself and, if they wish continuing work or referrals, might be motivated to please their payors. In my experience, the best investigators of employee misconduct are trained employees within the company, from human resources or otherwise, who understand the company and have the confidence of the principals involved. As long as the investigators have no stake, interest, bias or affinity with any of the parties, and are suitably trained, employers are best to use their own internal trained staff.
Although it may appear against my interest to say so, employers are mistaken using lawyers when they do use external investigators. Lawyers have no special training for the task and the disadvantages of their use greatly outweigh the advantages.
One major advantage of a workplace investigation is that everyone interviewed is required to tell the truth on pain of discharge. They also have no right to counsel while investigated. As result, to the extent possible, investigations can quickly get to the truth. However, if the investigator is a lawyer, the whole process ossifies as everyone involved can insist upon their own lawyer being present. The lawyer will object to questions and the whole process quickly grinds to a halt or, at best, less information will be obtained. As well, if an employer uses a lawyer as an investigator, that lawyer becomes a witness and their law firm conflicted out if a matter ever goes before a judge or tribunal.
It is not as if using a lawyer provides any advantage. Judges have no interest in the views and findings of any investigator since their very job is to come to their own conclusion. The findings of the investigator are inherently hearsay. This is quite apart from the costs of lawyers as investigators rather than using non- lawyers or inhouse staff.
I’ve seen many cases where the legal costs of the investigator dramatically exceeds any amount that could potentially be at stake.
Let us understand what is actually going on. Employers are avoiding responsibility for making judgments by claiming to be deferring decisions to the opinion of investigators. Oftentimes, that is merely an excuse for inaction.
As for Paikin, TVO obviously assessed the credibility of Paikin and his accuser and decided, on balance, that it would be a mistake to suspend him during the investigation. If that investigation reveals different facts, it can then come to a different conclusion. Last I heard, that is what management is paid to do.