Workplace Investigations

Employee Protected Rights – An Overview

Protections to be Afforded to the Suspected Ones

The law with respect to an individual’s protections in the course of an investigation originates in the world of criminal cases.  It seems inappropriate at first blush to consider the application of criminal law jurisprudence to what usually is an investigation conducted at a modern workplace where there typically is not a suspicion of serious criminal activities.

This being said, sexual harassment, employee theft, workplace abuse, possession of child pornography, threats of physical assault and other workplace misconduct most definitely can give rise to criminal and other proceedings.

The criminal law does provide some guidelines on this issue.

These issues to be considered are:

  1. Does the accused person have the legal right to counsel when he or she is interviewed by the investigator?  This question itself raises two issues, the first being the legal right to counsel under the Charter and the second as to whether this duty may arise from the implied term of fairness in the employment relationship.
  2. Does the investigator have a right to access the cyber records of the employee stored on the employer's IT system?
  3. Is there a right to refuse to answer a question, the answer to which may implicate the suspected one in the commission of an offence?
  4. May the statement given by the accused person to the investigator be used against him or her in subsequent criminal or quasi-criminal proceedings? This issue is considered by the common law confession rule.
  5. Should the suspected one know that the employer is acting in a manner which is complicit with a government authority such as the police?
  6. Does the suspected one have a right to have  the investigator's notes and comment upon them?

A summary of the law on these various topics, which is discussed in more detail below, is as follows:

  1. A search of stored electronic communications and notes which violates the expected confidence of the employee will not be allowed, as reviewed here.
  2. The common law confession rule may apply to the interview, given existing or reasonably anticipated criminal proceedings, with the consequence that such a statement will be inadmissible in a criminal proceeding.
  3. The right to silence may prevail where the questioned one faces criminal charges or likely pending criminal charges. This may be give rise to a civil defence to disciplinary proceedings, given termination or other discipline due to the refusal to answer such questions. This summary comes from arbitral, not common law, authorities.
  4. There is no right to Charter protections, including the right to counsel, given the actions of a private actor, save in Alberta, and perhaps Saskatchewan. The text of the Charter is found here.
  5. There is an argument at common law that the third party neutral investigator should advise the questioned one to retain counsel to understand their rights. There is no case law on this subject.
  6. The questioned one may be entitled to the notes of the investigator.

These issues are explored in detail in the sections following.