Should you hire an external investigator?

Human rights and harassment complaints are often handled in house by human resource professionals. However, in some cases, this could be problematic for the business entity. Human rights and harassment allegations under the Human Rights Code and Occupational Health and Safety Act ["OHSA"] have the potential to lead to costly litigation through a Human Rights Application,  a complaint under OHSA, a grievance or a lawsuit.

Benefits of an External Investigator

Hiring a competent, experienced investigator to conduct a fair, neutral and thorough investigation  will limit the risks to an employer or business if the matter goes before a tribunal, arbitrator or court. Hiring an external investigator suggests to the adjudicating body that the business entity has demonstrated due diligence in handling the allegations and has taken the matter seriously.  This could reduce liability, with respect to damages. An employer will always be held accountable for the actions of its employers, but if they take appropriate action, the consequences can be limited to some extent. See our blog post on employer liability for more information. 

Considerations

Delay

Delay is an important consideration when a complaint is made or allegations are raised. If your company does not have the capacity to handle or investigate the complaint, or more specifically, handle it in a timely matter, it would be wise to hire an external investigator. This assures the complainant that the matter is being taken seriously, and doesn't leave the respondent in limbo for too long. Further, adjudicative bodies may conclude that delaying an investigation is unreasonable when reasonable options are available to prevent such a delay, such as hiring a third party to assist with handling the matter.

Timeliness is incredibly important to the investigation itself. The investigator needs to gather the facts and evidence before memories fade or potential collusion could arise; it is therefore important for a fair and proper investigation that it is conducted as soon as reasonably possible.  

Complexity & Competency

If the allegations are serious, the issues are systemic, or the investigation is complex, with many parties or numerous allegations, the investigation may be too complex for human resource specialists who may not be properly trained to conduct such investigations. 

Often, human resources professionals are not properly trained investigators, and do not have a substantial or thorough understanding of the law. If human resource professionals are not properly equipped to handle a human rights or harassment complaint, they are being set up for failure, the parties could be harmed and unfairly treated, the investigation could be botched and the company could become liable, if the matter appears before an adjudicator. 

High-ranking Officials

When the allegations are made against executives, directors, managers or other high-ranking employees, it is important to consider a third party investigator to ensure there is no reasonable appearance of bias and no internal influence on the outcome, whether real or perceived.

Impartiality

Employees who are deeply harmed may consider internal investigations to be unfair and biased, believing that an internal human resources professional or internal investigator would favour the respondent. This is especially true if a complaint is lodged against a manager or supervisor. Often employees fear that the internal investigation will favour management in these types of scenarios. When complaints are lodged against a manager or supervisor it is generally wise to hire an external investigator to ensure there is no apprehension of bias or real bias when conducting the investigation. Further, in house investigators may know those who they must investigate, and this can cause an appearance of bias or actual bias and should be avoided. Hiring an external investigator will demonstrate to an adjudicator that the business is taking the matter seriously and taking steps to ensure it is managed appropriately and impartially.

Damages

A mishandled investigation, whether conducted improperly, suffering serious delay or being conducted by someone who is not impartial has the potential to leave the business open to liability and damages. In some instances, damage awards can be very serious, and would be much more costly than doing it right from the start by hiring an external investigator.

For example, in Boucher v. Wal-Mart Canada Corporation, the Superior Court (judge and jury trial) awarded damages as a result of the company determining that the allegations were unsubstantiated, despite ample evidence to the contrary. The Court determined that Wal-Mart did not take the complaint seriously, did not intervene to prevent further harm and retaliated against the Complainant. The Complainant was initially awarded $1.45 million on the basis of constructive dismissal; however, the damage award was reduced to $410,000 by the Ontario Court of Appeal in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII). Regardless, the reduced damage award is high and sends a strong and clear message to employers to take allegations and investigations seriously, and ensure they are properly and fairly investigated, in a timely manner, in adherence to policy and the law. Wal-mart had the appropriate policies in place, however, they were not properly understood by staff members, making education and training key to preventing such costly situations for businesses. For example, the complainant being threatened that she would be held accountable if the complaints had no basis or were proven to be unwarranted is retaliatory in nature, problematic on its own accord, and would be in violation of the Human Rights Code and OHSA. Complainants should feel safe bringing forward complaints without fear of retaliation, even if they cannot be proven or substantiated. Education on reprisal, policies and the law could have led to a different outcome, preventing litigation. 

Trust & Morale

It is of utmost importance that your business has a healthy working environment. Hiring an external investigator may have the effect of contributing to trust and morale of the organization, which could prevent further complaints and/or allegations, and ensure staff know that human rights and/or harassment complaints will be taken seriously. 

Other Considerations

If the complainant has hired a lawyer or the subject matter could garner media attention, hiring an experienced investigator will demonstrate to the public and the parties that you take the matter seriously and want it to be handled appropriately. Human rights and harassment complaints can damage the reputation of an organization; however, the reputation could be salvaged with the assistance of a competent external investigator, by demonstrating the importance placed on handling the matter swiftly,  fairly, neutrally and competently.  

Final thoughts

It is important to find an investigator that has experience and is competent; who understands investigative processes and the law; is unbiased, neutral and perceived to be impartial and trustworthy by the parties; and, who can and will ensure procedural fairness for the parties.

LJHRC conducts thorough, fair and timely investigations. We are competent, trained and experienced investigators who are also trained lawyers, and familiar with the law and procedural fairness. Contact us if you would like to discuss whether we can assist you with your human rights or harassment matters.