The dangers of failing to investigate fairly can be extreme
Failure to investigate workplace misconduct can not only derail morale, but it can also lead to hefty liability for Canadian employers. HRD spoke to Stuart Rudner, founder of Rudner Law and speaker at UKG’s upcoming webinar Conduct Better Workplace Investigations. He revealed how the nature of harassment has changed in remote work and explained how improper investigations could lead to expensive lawsuits.
“The duty to investigate arises in two different contexts,” Rudner told HRD. “One is fairly specific: when there are allegations or even suspicions of harassment or sexual harassment, there is an absolute duty in every Canadian jurisdiction to engage in some sort of investigation. At a broader level, if there is a suspicion of misconduct, we always advise our employer clients to engage in an investigation before dismissing the employee. I won't say there's a legal duty to do so, but you can face additional liability if you go ahead with a termination and then a court decides that you’re wrong and that you failed to investigate first.”
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But launching an investigation isn’t enough – not if you’re going to approach it with your mind already made up. Jumping to an accusatory stance rather than an unbiased one is one of the biggest mistakes that employers make regarding misconduct investigations – and as Rudner told us, it’s all too common.
“Engaging in what I'd call a prosecution as opposed to an investigation, where an employer sets out to gather all the evidence and prove that the employee engaged in misconduct as opposed to an objective investigation, is a common mistake,” he explained. “An investigation isn’t considered fair unless you’re willing to abide by the rules. Making assumptions or terminating an employee prematurely won’t be tolerated by the courts.”
One would imagine that harassment was on the downturn since WFH mandates appeared – not so. According to a recent report from UKG, harassment is one of the most concerning areas of misconduct for HR professionals - with 76% of leaders worried about online abuse. As Rudner told HRD, abuse hasn’t gone away in remote work – it’s simply changed forms.
“With the advent of remote and hybrid models, we see a different nature of harassment allegations come to the forefront - part of which is driven by the social context,” he explained. “People are a lot more stressed out and they don't have the same interpersonal relationships in the workplace. For example, in the past, employees may have been reluctant to engage in abusive or harassing behaviour because they had a personal relationship with their colleagues. Now, they may have never met in person – as such, we see a lot more harassment by text messages, as well as harassment in video meetings.”
Misconduct is still misconduct, whether it’s online abuse or in-person wrongdoing – and it has to be investigated. While it can often be uncomfortable having to investigate your employees, it’s entirely necessary – even when it involves employees in your HR department.
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“There’s one workplace investigation that really sticks in my mind,” Rudner told HRD. “I remember getting a call from a CEO, a client I’d worked with for years, who sounded rather panicked. He said he’d seen his HR director stealing from a children’s toy drive box in the office. When I asked if he was sure, he said it was all caught on camera. I gave him the same advice I give all my clients in this situation: First, confront the person in question and hear their side of the story. The CEO later called me back. As it turned out, the HR director had taken the toys out of the box for safe keeping. He said they were expensive toys in the box and that it was left unsupervised every lunch when the receptionist went out. The director didn’t want anyone to take them – so he stored them in his office. Bearing in mind that the HR director was a person the CEO had worked with for a long time – someone he trusted – he gladly accepted the explanation. This is a poignant example of the importance of conducting a proper investigation rather than charging in all guns blazing. After all, if that HR director had been fired, the company could have been on the receiving end of a lawsuit – as well as having lost a valuable employee.”
To hear more from Rudner on conducting better workplace investigations, register for UKG’s free webinar and replay here.