CANADA Trends and Developments Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
Trauma-Informed Approaches in Workplace Investigations In recent years, investigators and employers have also paid increasing attention to the application of trauma- informed practices in workplace investigations. Gen - erally, trauma-informed approaches recognise the impact and manifestation of trauma and minimise the risks of further harm to individuals who have experi - enced trauma. In applying these approaches to work - place investigations, employers and investigators rec - ognise that individuals who enter the workplace may have suffered trauma in their past, which could affect how they respond and react to workplace events and during the investigation process. This approach recognises the traumatic and psychological impacts that workplace events such as harassment, discrimi - nation, bullying or other distressing events can have on individuals who experience them. It also takes into account the participants’ personal circumstances and experiences, which may vary widely. In practical terms, investigators may apply trauma- informed tools in several ways. At the outset of inter - views, this often includes clearly explaining the inves - tigation process, roles, and expectations to enhance predictability and reduce anxiety. Investigators may also adopt a more deliberate approach to building rapport, and may allow participants greater con - trol over pacing, breaks, and sequencing of topics. Guidance from the Canadian Department of Justice similarly emphasises the importance of transparency, respectful communication, and participant autonomy when engaging individuals who may have experi - enced trauma. A trauma-informed approach becomes particularly important where investigators are required to assess credibility or make findings based on memory, demeanour, or behavioural responses. Investigators should take this into account when making find - ings in an investigation. When applied thoughtfully, trauma-informed approaches strengthen, rather than undermine, procedural fairness. By reducing barriers to participation and supporting accurate evidence- gathering, they assist investigators in reaching find - ings that are both fair to the parties and defensible from a legal and procedural standpoint.
Specific Issues in Investigations Off-duty misconduct
With the advent of social media and viral moments, the rise of remote and hybrid workplaces, and the increase of the online “footprints” of employees, the lines between employees’ private and public lives continue to blur. In 2025, employers continued to grapple with the appropriateness of investigating and disciplining off-duty behaviour that occurs outside the physical confines of the office but could still impact the workplace or the employer’s reputation. The jurisprudence has confirmed that employers are entitled to discipline employees for off-duty behav - iour that impacts the workplace. Moreover, employ - ers could still have a legal duty to investigate behav - iour that occurs outside of the workplace if it has a negative impact on the workplace and/or threatens the right of all employees to be free from harassment and discrimination in the workplace. Even if conduct occurs outside of working hours and on private devic - es or electronic platforms unrelated to the workplace, employers may still have a statutory obligation to investigate such conduct. Recent decisions serve as a reminder that the focus is not on where the conduct occurs but on its impact and the employer’s corre - sponding obligations once it becomes aware of the conduct. Some employers have also been proactively adopt - ing strategies to mitigate reputational risks associated with off-duty misconduct, particularly as they arise through employee online behaviour and the use of social media. For example, the Government of Cana - da recently released a course and guidance document on “Guidance for Public Service on their Personal Use of Social Media” which seeks to minimise risks of off- duty misconduct by providing guidelines and con - siderations for public service employees when using social media. The guidance document stipulates that “it is not meant to discourage personal use of social media platforms”. Instead, it seeks to foster an under - standing of how public servants are responsible for promoting “a professional, non-partisan, and impartial public service that inspires the trust and confidence of Canadians”. The guidance document also identifies strategies for balancing this responsibility against the individual right to freedom of expression.
74 CHAMBERS.COM
Powered by FlippingBook