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If not done properly, conducting a workplace investigation can be costly. This lesson was learned by the Royal Bank of Canada in Lau v. Royal Bank of Canada[1]. Mr. Lau was an account manager at one of RBC’s Vancouver branches. A customer of Mr. Lau’s filed a complaint about the manner in which Mr. Lau handled her funds. RBC looked into the issue and escalated the issue to its corporate investigation services division. There, investigators reviewed the complaint, relevant video footage from the meeting and Mr. Lau’s computer activity for the customer. The investigators met with Mr. Lau the following week. Ultimately, the outcome of the investigation was a conclusion that Mr. Lau had failed to meet with the customer in the presence of another manager, as he alleged he had done and that he incorrectly inputted data into the system, which impacted his compensation.

The court was very critical about the manner in which RBC investigated the alleged wrongdoing. The Court found that RBC completely accepted the truth of the contents of the customer’s complaint, without first investigating the complaint or interviewing Mr. Lau. Further, RBC failed to call the customer or the contact person at RBC who received the complaint as a witness at trial. The Court found the reliability of the video evidence to be weak, as the individual reviewing the video was not provided with a photo of Mr. Lau and Mr. Lau should have been provided the opportunity to review the video.

The court found that RBC did not have grounds for cause and awarded a notice period of 9 months and a further aggravated damage amount of $30,000, in part due to the “flawed” investigation.

However, the Ontario Superior Court of Justice was not critical of an employer’s investigation in Persaud v Telus Corporation,[2] despite an ex-employee’s allegation that it was not conducted fairly. In this case, the Plaintiff claimed constructive dismissal and aggravated and punitive damages with respect to an internal investigation that was conducted after her employment with the company ended. The past employee attacked the investigation on the basis that it was conducted internally (and a neutral, external investigator was not retained) and that she was not interviewed. The court rejected the Plaintiff’s argument finding that Telus had used a team of investigators with expertise in the areas being investigated – namely that the Plaintiff had accessed and sabotaged Telus’ server after her employment ended. The court found that the technical information and evidence was studied and the conclusion reasonably reached that it was the Plaintiff who had accessed the system and an external investigator was not needed. In terms of the employer’s decision not to interview the subject of the investigation, the court noted that nothing in the Plaintiff’s evidence at trial, if discovered earlier through an interview would have changed the conclusion of the investigation, which was conducted in good faith. The court also highlighted the importance of avoiding preconceptions as to the findings of a workplace investigation.

Conducting workplace investigations – and doing it properly, will become a more frequent consideration for employers in Ontario with Bill 132 which requires employers to conduct workplace investigations where workplace harassment has been complained of and it is “appropriate in the circumstances”. For more information on Bill 132 see Beth Traynor’s blog.

[1] 2015 BCSC 1639 (CanLII)

[2] 2016 ONSC 1577 (CanLII)

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