Using internal investigator

Internal vs. external investigator for employee misconduct
By Brian Kenny
|Canadian Employment Law Today|Last Updated: 04/04/2012

Question: Are there circumstances where it would be okay for an employer to use an investigator or mediator from within the company to deal with employee conflict or serious misconduct? What are the potential liabilities?

Answer: The short answer is yes. In fact, an employer may often have certain obligations, particularly under occupational health and safety legislation, to its employees to protect them from the harmful effects of such misconduct on the part of another employee. In these circumstances, an employer is required to take immediate and effective steps to offer that protection, to exercise reasonable care in doing so, and to correct the situation promptly. Employers thus have a legal duty to prevent, reduce or limit misconduct such as harassment. An employer who moves quickly to undertake an investigation of a complaint or incidence of misconduct in order to remedy the situation will be taking active steps to fulfill that obligation, even if the investigation is conducted internally.

However, there are potential liabilities associated with such a decision. The employer has an obligation to conduct an investigation in a thorough, fair and impartial way. Often an external investigator, such as lawyer or private investigator, will be equipped with the knowledge, training and professional responsibility to meet these obligations without question. However, an employer who opts to conduct an internal investigation must be careful to ensure that the investigation meets the standards for procedural fairness, or else it will open itself up to liability. The employee who is the subject of a faulty investigation could potentially pursue a court action, such as an action for wrongful dismissal, or initiate a human rights complaint. In other words, it is possible to conduct an internal investigation into misconduct, but employers should be fully aware of the elements required in order to ensure it meets procedural fairness standards.