Summary of the Rights of the Employee

 

A summary of the law on these various topics then is as follows:

  1. A search of stored electronic communications and notes which violates the expected confidence of the employee will not be allowed.
  2. The common law confession rule may apply to the interview, 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. These are 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.
  5. The questioned one may be entitled to the notes of the investigator.
  6. There may be an argument at common law that the third party neutral investigator should advise the questioned one to retain counsel to understand their rights.

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For Mediation of Employment Law & Workplace Human Rights Issues