Workplace Investigations

Analogy to Union Representation

The issue of the interpretation of the rights of the unionized worker may be relevant to the rights of the common law employee in the investigative process, as reviewed above.

The general view of the right of union representation is that employees are entitled to have a union advisor present at disciplinary meetings, but not for fact finding purposes. This is often an issue which is set out in the collective agreement.

Take, for example, the term of the agreement that was considered in a 2022 decision: 1

13.7 Discipline, Suspension and Discharge

Where the Employer calls a meeting with an employee for the express purpose of investigating their conduct or issuing them written discipline, suspension or dismissal, the employee may elect to have a Union representative(s) present. The Employer agrees to contact the Union and provide a minimum of three (3) hours' notice so the Union can contact the employee and provide the Union representative(s) if the employee so wishes. Where the employee elects not to have a Union representative(s) present or a Union representative(s) is not available for the meeting within the three (3) hour notice period, the absence of a Union representative(s) shall not affect the Employer's right to discipline, suspend or dismiss. Nothing in this provision shall prevent the Employer from taking immediate action to remove an employee from the workplace to address serious workplace concerns.

One would expect that a meeting called "for the express purpose of investigating" would be caught by this requirement. This was not the decision of the arbitrator who concluded that there is no such obligation upon the employer in the event of a fact finding meeting, notwithstanding these words.

The decision held that the above term would be operative only if it was for the express purpose of investigating the employee's conduct for disciplinary purposes or to issue discipline. The right of union participation would arise only if such an express purpose is within the employer's reasonable contemplation.

Should such an apparently benign meeting make out the likely culpability of the employee, then the union must be notified.

It does seem odd that this right would arise only where the employee's statement suggest their vulnerability, well after the seemingly incriminating statements have been offered.

The decision went on to allow that the interrogated employee, when faced with a question, the answer to which, may expose them to possible discipline, has the right to remain silent until a union representative may attend.

How such a person may know of such a right, in the absence of professional advice, is to say the least, bewildering.

Once the union has been allowed to participate, the same decision stated that the union was obliged to receive an investigation meeting notice which set out a general statement of the matters under investigation, including dates and names of the parties involved but was not mandated to receive the written complaint.

Again, this seems perverse to deny the person being investigated the right to review the very complaint which led to the investigation.