CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
It may also be advisable to implement interim meas - ures during the course of an investigation. Interim measures may include: remote work; increased moni - toring or security; transfer(s) of parties to other depart - ments or offices; changes to reporting structures; and/ or imposition of administrative leaves or suspensions (often with pay). If a leave of absence is necessary for either a reporter, complainant or respondent, the leave should be an “administrative leave”, rather than a “suspension”, where the investigation is ongoing and the allegations are unproven. The appropriateness of removing the reporter or com - plainant from the workplace will depend on the nature of the complaint and factual circumstances. 4.2 Protection of the Respondent Employers should also take actions to protect the respondent. As noted in 2.3 Confidentiality Agree - ments and NDAs , employers have confidentiality obligations towards those involved in an incident of workplace violence or harassment. The confidentiality obligations towards the respondent may differ slightly based on each jurisdiction. In any event, it is gen - erally good practice to maintain confidentiality over the name of the respondent and the circumstances (subject to any requirements to conduct a fair inves - tigation) during the course of the investigation for the reasons noted above. Some health and safety legislation explicitly prohib - its the disclosure of a respondent’s name (as well as the names of complainants and witnesses) except where that disclosure is required by law or necessary to investigate the complaint, take corrective action, advise the parties involved of the results of the inves - tigation or advise the parties involved of the corrective action taken (see for example, Alberta’s Occupational Health and Safety Code, Section 390.5 (c); Manitoba’s Workplace Safety and Health Regulation, Section 10.2 (1)(d)). 4.3 Measures Against the Respondent Generally, an employer should not take any discipli - nary measures against a respondent prior to con - cluding an investigation unless there are exceptional circumstances. If an employer wishes to remove a respondent from the workplace, they should place
the respondent on an “administrative leave”, which is non-disciplinary in nature. Suspending a respond - ent without pay at an early stage of an investigation can attract liability and should only be reserved for exceptional circumstances and after careful consid - eration ( Filice v Complex Services Inc , 2018 ONCA 625 paragraphs 38–39). A suspension without pay that cannot be justified or is unreasonable can result in a finding that the suspension was a breach of the employment contract and amounted to constructive dismissal ( Filice v Complex Services Inc , 2018 ONCA 625 paragraphs 38-39). 4.4 Protection of Other Employees In every jurisdiction, employers are legally obligated to take reasonable steps to protect the safety, health and well-being of their employees under occupational health and safety legislation and human rights legisla - tion. Employers who fail to protect their employees (whether in the course of an investigation or otherwise) may be in breach of that legislation as well as potential common law obligations to employees. If the circum - stances pose a risk to employees, employers should implement appropriate interim measures, which, as noted in 4.1 Protection of the Reporter , could include remote work and/or changing work hours or shifts. 5. Procedural Requirements and Proof 5.1 Requirements In order to minimise the impact of a workplace inves - tigation on the parties and the workplace generally, and as required by law, the investigator should con - duct the investigation in a way that is as confidential as possible (without compromising the integrity of the investigation or procedural fairness owed to the respondent(s)). It is widely agreed upon that the respondent in a work - place investigation should be provided with particu - lars of the allegations before being asked to respond to them. A respondent should be provided with a sufficient amount of particularity such that they can meaningfully respond to the allegations.
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