Below is an excellent article recently done by Marnie Baizley and Sherifa Hadi, of the law firm SpringLaw, so much so that it should be shared:
You’ve been asked to meet with HR or People Ops. You may – or may not – be aware of what the meeting is about, but you’re a little rattled. You’re told the company will be conducting an investigation, meaning a matter is being taken seriously. You wonder whether you should go it alone or talk to a lawyer – someone who can help you navigate an unfamiliar process.
In short – yes! Speaking with a lawyer is a good idea. Here’s what they can do for you:
Ensure that you understand the allegations – If you have not been told the allegations made by the complainant(s), or if you have been given only partial information, a lawyer can assist you in obtaining and thoroughly understanding the allegations. You will then be prepared for your interview, and in a better position to give a complete statement of the facts (i.e. your side of the story).
Ensure that policies are being followed – Your workplace likely has a policy addressing how and when workplace investigations will be conducted. Your lawyer will help you understand your rights under the policy and under the law. If the investigator deviates from a process articulated by the policy, a lawyer will assist you in determining whether, when and how to advocate for yourself, to ensure that the process is followed and procedurally fair to you.
Help you navigate your communications with the investigator – Not all investigators are properly trained, and they can err in a number of ways, including failing to gather all the relevant information, failing to properly document all of the steps in the investigation process, and failing to provide timely communication as the investigation progresses.
Intervening as a respondent is a delicate process because an investigator’s role is to make important determinations that will affect you. The last thing you want to do is needle the factfinder. Rather, respondents should be cautious and strategic about each communication with an investigator.
Inform you of the process and help you prepare for it – Often workplace investigators will not permit lawyers to attend your interview(s) with you (particularly if the investigation is an internal one). Since a workplace investigation is not a police investigation, you don’t have a legal right to have a lawyer present. Instead, a lawyer can help you plan and prepare in advance for your interview(s). They can discuss possible disciplinary actions the employer can take based on your history (i.e. first instance of misconduct vs. a pattern) and the gravity of the allegation(s). They will steer you to the important subject matter.
Your lawyer can also help you navigate interim measures implemented by your employer and propose how such measures might be modified to feel less punitive (e.g. if your employer places you on a leave for the duration of the investigation).
Ensure the investigator has all the relevant information – The investigator’s determination is only as good as the information they have. Once your lawyer has a clear understanding of the allegations, they can advise you on the type of information to produce to support your response and, if applicable, what witnesses to suggest that the investigator interview. The investigator may or may not choose to interview your suggested witnesses, but the names are still worth raising, along with your reasons for your suggestions.
Notably, a lawyer with experience in workplace investigations will help you decide what is relevant and when to draw the line and let the investigator do their job.
Provide general support and coaching – The process is likely to be an intimidating one, producing all sorts of emotions and you may have trouble staying focused and concise as a result. Your lawyer will be able to support and advise you on how to navigate this process, advocate for yourself in a concise and strategic manner that does not alienate the investigator and point you to resources to cope with negative feelings about the investigation.
From a cost standpoint, some lawyers offer unbundled legal services (also known as ‘limited scope’ or ‘discrete task representation’) and pre- or mid-investigation consultations about process are well-suited to that model. One or two consultations are sometimes all that is needed to put a respondent’s mind at ease and get a complete and accurate version of their side of the story on the table. Employment lawyers with expertise in conducting workplace investigations are best suited to help you when you are a party in a workplace investigation.
Credit: Marnie Baizley and Sherifa Hadi, dated November 13, 2019
Link to original: https://www.springlaw.ca/2019/11/13/so-youre-a-respondent-in-a-workplace-complaint/