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On the Job - Pushor Mitchell's Employment Group

When workplace investigations go wrong

For a variety of reasons, workplace investigations are becoming increasingly common in businesses of all sizes. There are a number of reasons for this, including compliance under law, requirements under collective bargaining agreements and best practices in human resources. While the benefits of effective investigations should not be understated, it’s equally important for companies and HR professionals to recognize the legal implications of investigations gone wrong.

 

#1 – Privacy

While an investigator is tasked with gathering evidence and information, he or she must also be sensitive to privacy concerns. In British Columbia, most businesses will fall under the BC Personal Information Protection Act (PIPA) or the Federal Government’s Personal Information Protection and Electronic Documentation Act (PIPEDA).

This legislation governs the collection and use of personal information for both employees and non-employees. An unlawful use or disclosure of personal information by an investigator can quickly lead to a complaint to a privacy commissioner and in some cases a lawsuit for the tort of “intrusion upon seclusion”.

 

#2 – Workers’ Compensation

Under the BC Workers’ Compensation Act, there are a number of instances where employers are required to conduct investigations, including in responding to a workplace injury or death and if occupational health and safety concerns are raised.

While WorkSafeBC is not normally quick to issue sanctions, failure to investigate can lead to a complaint being filed and a WorkSafeBC field investigator being appointed. WorkSafeBC also has the authority to issue penalties and fines in response to a company’s failure to investigate.

 

#3 – Defamation

Defamation arises when a publication, either spoken or written, is made which tends to lower a person in the estimation of members of their community. Defamatory statements do not normally give rise to a claim if they are truthful or if the publisher has qualified privilege, meaning an interest or a legal, social or moral duty to publish the information.

In the case of a workplace investigation, employers will generally have qualified privilege to investigate accusations, even if these accusations are false. However, investigators must also be vigilant to explore complaints responsibly and professionally and to limit unnecessary disclosure or publication.

 

#4 – False Imprisonment

The tort of “false imprisonment” is a bit of a misnomer, as there is no need for a prison or any kind of incarceration. Rather, this type of legal action arises when someone is intentionally confined by another person without legal reason.

In the course of a workplace investigation, false imprisonment may arise during the witness interview. It is important that the person being interviewed be made aware that they can leave at any time and that they are not being held against their will.

 

#5 – Assault and Battery

Clearly, any investigation which has resulted in battery has gone very wrong. However, investigators should also be very clear as to what constitutes the tort of assault and battery. Briefly stated, assault is the intentional creation of the apprehension of imminent harm. No physical harm occurs, but rather the apprehension of harm (think threatening someone with a fist). Battery arises when someone causes an offensive contact such as a punch, kick or shove.

In heated discussions, tempers can flare. For this reason, during the course of an investigation, employers must be aware that a menacing gesture, a push into a chair, or striking an object, creating a projectile, may all amount to the tort of assault and battery.

 

Conclusions

Investigations enhance company transparency, help correct problem behaviour and address interpersonal conflicts. When properly conducted, they can also help limit corporate liability and avoid the costs and inconvenience of litigation. However, investigators must also be mindful of the legal implications of poorly conducted investigations. In most instances, it is this author’s opinion that the concerns raised in this article will be overcome with a professional, responsible and good faith investigation into legitimate concerns.

 

Article written by:  David Brown

David Brown is an employment lawyer with the Kelowna law firm Pushor Mitchell LLP. For more information on workplace investigations and other employment law matters, please contact David at [email protected].

 

The merits of any potential claim are always fact dependent. Readers should not take legal action, or should not refrain from taking legal action, in reliance on the information contained in this article and without first obtaining advice from legal counsel in their home jurisdiction.



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I quit! Or did I?

Some employers and employees may be surprised to learn that an employee who tells an employer that they are quitting their job, may not always, in the eyes of the law, be seen as actually having quit. An employee, for example, who purports to quit their job in the heat of an argument with their employer, may be able to retract that statement and actually keep their job. This was the case with a mill employee who had a heated argument with his employer that ended with the employee stating that he quit and handing over operation of the mill to his assistant. The employee went so far as to tell the chairman of the board that he was fed up and that they would have to get someone else to run the mill. Once the employee left the mill premises, the board held an emergency meeting to accept his resignation.

The British Columbia Court in that case found that the employee’s apparent resignation was made in a “spontaneous outburst of anger . . . and . . .was accepted without proper deliberation by the directors . . . “ The Court was of the view that the board should have waited until tempers had cooled down and then met with the employee to discuss the situation. Having not done this, the Court felt that the board acted too “hastily”.

In that case, even though the employee stated that he was quitting and handed control of the mill over to someone else in the heat of a disagreement with his employer, it was the emotional context of the statement that led the Court to determine that the employee did not in fact have the intent to resign.

The above is only one of several examples of circumstances in British Columbia where an employee appeared to the employer to have quit their job, only to have the employee later argue that they had not in fact quit and still intended to keep working at their job. It is a reminder to employers and employees alike that it is often necessary to take a step back and assess the circumstances objectively in order to determine if the employee really intended to quit their job. Proceeding on the wrong assumption could have disastrous consequences for both parties.

The Courts in British Columbia have provided guidance on what requirements must be met before an employee will be found to have quit their job. If you are faced with a situation where this issue is uncertain, it is best to seek legal advice to help ensure a more informed decision is made at the early stages in order to avoid problems and surprise down the road.

 

Article written by Greg Pratch



What is Constructive Dismissal?

You may have heard this phrase before and wondered what it means. “Constructive” in this phrase does not mean positive or helpful. It means “equivalent to”.

It comes about when an employer significantly worsens the conditions of employment of one or more employees. The conditions of employment most often changed are: wages, benefits, duties, position, and/or location. Constructive dismissal may also occur where the employee is treated unfairly, arbitrarily, or disrespectfully.

Subject to the important qualifications below, an employee who has been constructively dismissed can quit their employment (or withdraw their services) and still sue for damages (normally an employee who quits cannot sue).

In order for any such claim to be successful it is generally necessary for the employee to show that quitting was the only reasonable alternative because the effect of the change of work conditions made it untenable for the employee to carry on. It follows that a respectful and thoughtful change of conditions of employment with advance notice and reasonable implementation will not justify a withdrawal of services.

Employees who are adversely affected by change of work conditions should not assume that they will recover damages if they quit and sue. It may be more reasonable to look for another job while they are still employed.

 

Article written by Alfred C. Kempf



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Recording employee phone calls

Can an employer record employee phone calls?

There are lots of reasons an employer may want to record phone calls in the employment context; they could be trying to record specific transactions to ensure they have the right order details, they could be trying to ensure quality assurance, or they could want to use the recordings for training purposes for their employees. If an employer wants to record phone conversations between employees or between their employees and the general public there are some important points that any employer should be aware of and must follow.

The short answer is that an employer must have a clear business need to record a telephone call between two employees or between an employee and a member of the public. Once that business need is established, the organization must ensure that they are notifying the individuals on both ends of the call that their call is being recorded and the purpose for which the call is being recorded for.

While there is not a specific provision in the British Columbia Personal Information Protection Act (PIPA) or the federal Personal Information Protection and Electronic Documents Act (PIPEDA) that outlines the rules around call recordings, there are several provisions that apply and there have been several guidelines produced by the British Columbia Office of the Information and Privacy Commissioner (OIPC) and the federal Office of the Privacy Commissioner (OPC) as well as several relevant cases.

First the legislation, PIPA requires that an organization provide an individual with notice of the purposes for which they are collecting the information, that they have consent to collect the information and that the purposes for which they collect the information must be reasonable. In the context of call recordings this means that an employer should consider the reasons they want to record calls and ensure that they notify individuals of those reasons at the beginning of the call. This can either be done by way of an automated recording or by having your employees trained to give this notification at the beginning of each call. It is also important to remember to give this notification on both incoming and outgoing calls. It is also worthwhile to physically mark any phone in the office that is being recorded; this will ensure that employees do not use that phone for personal or other uses where a recording is not intended.

Secondly, there have been several cases where the OIPC and OPC have investigated employee and other complaints regarding call recordings. These cases have led the OIPC/OPC to create several guidance documents to assist organizations in using call recordings in accordance with the applicable privacy legislation. The most recent document is a 2008 OPC document titled “Guidelines for Recording of Customer Telephone Calls” and is available on the OPC website.

The bottom line is that if you are going to record telephone calls you should:

  • Identify a clear business need to record the calls.
  • Ensure that both parties on the call are notified at the beginning of the call that their call will be recorded and the purpose for which the call is recorded.
  • Physically mark phones that are being recorded to remind employees that their calls are being recorded.
  • Ensure that your organization has an appropriate privacy policy in place.
  • Ensure that they are retaining a copy of the call recording in accordance with the relevant legislation and their internal policies.
  • Consult with a lawyer with experience in this area to ensure that you are not offside the privacy or other legislation and that you are meeting your employment obligations.

 

Article written by Greg Pratch



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About the Author

Pushor Mitchell's Employment Group assists clients in meeting the challenges of today's workplace, including: hiring, firing, management, discipline, contracts, human rights, employment standards, privacy and many other related issues. In their column, the authors' provide practical and interesting information on employment law topics for both employers and employees.

The authors: Alfred Kempf, Greg Pratch, Joni Metherell, Keri Grenier, Mark Baron, and Mark Danielson.

Have an employment law topic you want to see addressed? Comments or suggestions are always welcome.

Email: [email protected]

Additional information available on our website: www.pushormitchell.com

 




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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet presents its columns "as is" and does not warrant the contents.


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