Ask a lawyer: What’s the best way to deal with worker misconduct?

Ask a lawyer: What’s the best way to deal with worker misconduct?

Ask a lawyer: What’s the best way to deal with worker misconduct? Investigating allegations of misconduct against an employee is never an easy task for HR, but regardless of what’s alleged, it’s important that it’s handled properly – or the consequences can be costly.

A recent Alberta court judgment highlights what can happen when an employer fails to investigate misconduct claims.

A worker who was “chewed out” by his bosses, suspended without pay, and escorted out of the building by security was awarded $75,000 in damages, on top of six months’ salary for a reasonable notice period, and an allowance for bonuses.

So, what’s the best way to approach allegations of misconduct?

Filion Wakely Thorup Angeletti employment lawyer Diane Laranja says employers must investigate when confronted with allegations against an employee that might warrant a just cause dismissal.

“Don’t shoot first and ask questions later,” she urges.

An investigation should be neither rushed, nor drawn out, with the accused employee given an opportunity to respond.

“Employers could get a third-party or someone with time and availability to secure meetings and interviews, and to be able to prepare a report,” Laranja says.

The person investigating should be taking notes, as that will help a defence if an eventual just cause termination is challenged.

However, Laranja points out, some of those notes may be subject to privilege, and it’s advisable for an employer to consult counsel to discuss how that affects their case.

Throughout the process, managers and the employer should have an appreciation of and sensitivity to the employee’s situation, and act in good faith towards them.

Employers should also assess whether the alleged wrongdoing may signal that they don’t have an appropriate policy in place to deal with certain behaviour, or whether the worker could have benefitted from further training.

In deciding to dismiss for just cause, she adds, the employer should assess the employee’s length of service, their disciplinary record, the nature and extent of the wrongdoing, opportunities for retraining, the worker’s remorse and what policies and procedures might need updating.

They should also consider whether termination without cause may be a more desirable outcome in the long run, Laranja says.

And if the misconduct isn’t proven?

“Communicate the results to the employee, and tell them that as a matter of course, you had to investigate”, then provide them an opportunity to raise their own concerns, including any related to their manager or the process, she says.

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