Howard Levitt: When workplace investigations become delayed decision-making

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Photo by Getty Images/iStock PhotoToo many employers have forgotten how to fire.THIS CONTENT IS RESERVED FOR SUBSCRIBERS ONLYSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman, and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.SUBSCRIBE TO UNLOCK MORE ARTICLESSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.REGISTER / SIGN IN TO UNLOCK MORE ARTICLESCreate an account or sign in to continue with your reading experience.Access articles from across Canada with one account.Share your thoughts and join the conversation in the comments.Enjoy additional articles per month.Get email updates from your favourite authors.THIS ARTICLE IS FREE TO READ REGISTER TO UNLOCK.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one accountShare your thoughts and join the conversation in the commentsEnjoy additional articles per monthGet email updates from your favourite authorsSign In or Create an AccountAn employee is accused of misconduct. Management’s first instinct is no longer to determine what happened and then take the appropriate action. It is to call HR, then outside counsel, then an investigator and begin a process that consumes weeks or months.Everyone is terrified of making a mistake. So they investigate. Then investigate the investigation. Then ask whether they should interview another witness, review another email or give the employee another opportunity to explain conduct that is already substantially established.By the time the employer finally acts, the misconduct is months old.FP Work touches on HR strategy, labour economics, office culture, technology and more.By signing up you consent to receive the above newsletter from Postmedia Network Inc.A welcome email is on its way. If you don't see it, please check your junk folder.The next issue of Work will soon be in your inbox.We encountered an issue signing you up. Please try againThis is not responsible risk management. It is management paralysis in the guise of due process, and I have seen it become increasingly and quickly widespread. It is expensive, unnecessary and counterproductive.There is nothing wrong with a proper workplace investigation. Serious allegations of harassment, discrimination, violence or dishonesty deserve serious scrutiny. Employers need reliable facts before taking disciplinary action.But an investigation is supposed to assist an employer in making a decision. It is becoming instead a substitute for making one.Employers need to remember something that seems to have been forgotten: they run a business. They are not required to conduct a trial every time they receive a complaint. They do not need to eliminate every conceivable uncertainty. And they do not need to spend tens of thousands of dollars establishing facts that are already reasonably clear.If the facts are genuinely disputed, investigate. If important witnesses provide materially different accounts, investigate. If the allegation is serious and the consequences significant, investigate more thoroughly. But once the employer has the material facts, they should stop. More often than not, the relevant facts are evident from the outset.Not only is there no prize for the longest investigation, but excessive investigation actually damages the employer’s legal position.Consider an employer that discovers an employee has falsified expense claims. It has the expense reports, the receipts, the credit card records and the employee’s explanation. The essential facts are apparent. Yet management spends another three months interviewing colleagues and examining the employee’s history. Or pays an outside investigator $50,000-$100,000 to confirm what it already knew. Eventually it dismisses the employee for dishonesty.The employer should not be surprised when someone asks the obvious question: “If this conduct destroyed the employment relationship, why did you spend three months acting as though it did not?”That delay is called condonation and destroys the employer’s defence of cause.An employer need not dismiss impulsively. It is entitled to establish the facts and consider the appropriate response. But delay is not without legal consequence.The longer an employer continues the employment relationship after discovering misconduct, the more difficult it becomes to explain why the employee was allowed to remain employed after you learned of it.This advertisement has not loaded yet.This advertisement has not loaded yet, but your article continues below.Employers must stop demanding investigative perfection. Courts do not require a flawless investigation. In most instances, they are not even legally required. An employer can establish just cause for discharge even if it conducted no investigation at all.That reality should be liberating for employers. Yet many have gone in precisely the opposite direction, turning every workplace complaint into a miniature Royal Commission.A $5,000 workplace dispute never justifies a $50,000 investigation. A disagreement about an employee’s tone in a meeting does not require interviewing everyone who attended. And a straightforward case of documented dishonesty does not become more defensible because an investigator spends another six weeks looking for something else.People in the workplace investigation industry — and it is just that — have an economic incentive to elongate investigations, and that is what they do. Most investigations should be concluded within two or three days, allowing everyone involved to return to their jobs and end the swirling of rumours that investigations always create.Proportionality does not require cutting corners. It is simply competent management.Employers should ask five questions before starting an investigation:What are we trying to establish?What evidence do we need?Who genuinely needs to be interviewed?How long should this reasonably take?And the question that is most often avoided:What will we do when we have the answer?That matters because some employers investigate not to determine what happened, but because they are afraid to decide what to do about it. That is a very expensive habit. It is also unfair to everyone involved.The employee under investigation may spend months wondering whether their career is over. A legitimate complainant may spend that time waiting for the employer to protect them. Managers may devote countless hours to a process that should have resolved a problem.Meanwhile, the workplace learns that nothing happens quickly. That is not an HR policy. It is a sterile management culture.Employers should investigate serious allegations fairly and intelligently, document what they learned and provide employees with a meaningful opportunity to respond. Then they should make their decision — quickly.They should make it while the facts are fresh and the circumstances still resemble those existing when the misconduct was discovered.Employment law does not require employers to achieve certainty. It requires only defensible decisions. There is a profound difference.Howard Levitt is senior partner of Levitt LLP, leading his teams of labour lawyers in Ontario, Alberta and British Columbia. Howard has appeared in more Supreme Court employment law cases and provincial appeals than any lawyer in Canadian history. A bestselling author, he discusses current workplace issues on the podcast, At Work with Howard Levitt.Notice for the Postmedia NetworkThis website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.