We are super excited to announce that our blog has been inducted into the Clawbies Hall of Fame! Our regular readers will know what a Clawbie is because, well, we’ve won before. The Clawbies are the Canadian Law Blog Awards. Since 2006 they have been showcasing quality Canadian legal blogging. Our blog won previous awards in 2019, 2018, 2013, 2011. Induction into the Hall of Fame is a big deal for our little blog – kind of like a lifetime achievement award…tissue, please! 

To be inducted into the Hall of Fame we had to have a least three past wins, check! Being Hall of Famers means we can no longer win future Clawbies.   

We absolutely love blogging. It allows us to be creative, have a little fun and also, we hope, be helpful and informative. We are not a law firm that believes in hoarding the secret sauce. While most legal situations can benefit from individualized legal advice, we also use our blog as a way to bring relevant workplace legal information to those who may not be ready to hire a lawyer. 

Thanks to all of our readers and supporters. Here’s to another decade of sharing content, resources and tips to navigate the modern workplace law landscape.

As we shut the door on 2019 and begin 2020, we at SpringLaw thought this was a good time to look back on some of the biggest 2019 employment law cases in Ontario! Here is our list of the top 5 cases of 2019 and their key take-aways for employers and employees alike.

1. Colistro v. Tbaytel, 2019 ONCA 197

The facts in this case are fairly similar to other harassment cases we see nowadays, but what makes this case truly unique is the devastating cost consequences for the plaintiff employee. 

Ms. Colistro had been employed at Tbaytel for over 22 years when she was informed that her former supervisor, Mr. Steve Benoit, would be returning to the company. Mr. Benoit was terminated in 1996 because Ms. Colistro and a number of other employees accused him of sexual harassment. When Ms. Colistro expressed her concerns about Mr. Benoit her employer informed her that they could move her to a different location, a remedy that proved unsatisfactory for Ms. Colistro. The news of Mr. Benoit’s return caused Ms. Colistro a great deal of stress and ultimately led to her departure. Ms. Colistro sued Tbaytel for constructive dismissal.

The trial judge provided Ms. Colistro with 12 months in wrongful dismissal damages, which amounted to $14,082.00, once salary continuation and LTD were accounted for, and $100,000.00 in Honda damages for the bad faith manner of dismissal. 

The Court of Appeal dismissed both the appeal and cross-appeal and did not find in favour of Ms. Colistro for her intentional infliction of mental distress claim. The court concluded that Thaytel could not have known that their actions would cause serious psychological injury. While her constructive dismissal claim was successful, Ms. Colistro was left with a massive costs award ($200,000.00) and was required to pay the costs of her lawyer because she failed to accept a settlement offer from Thaytel that exceeded her trial award. This case is a classic example of how failing to engage in measured negotiation can lead to awful consequences for a plaintiff – even when they have a strong case!

2. Merrifield v. Canada (Attorney General), 2019 ONCA 205

Merrifield is another significant case because it is the first Canadian appellate court decision that has confirmed that a separate tort of harassment does not exist.

Mr. Merrifield, an RCMP officer, alleged that his career and reputation were damaged by his superiors after they discovered that he sought the Conservative party nomination in his riding. After learning of his participation in this nomination, the RCMP advanced an investigation into Mr. Merrifield. Mr. Merrifield claims that he was subjected to harassment and career-ending character assassination which caused him to experience extreme emotional distress. Mr. Merrifeild sued the RCMP for committing the common law tort of harassment. 

The Ontario Court of Appeal determined that the tort of harassment does not exist and that plaintiffs experiencing harassment should seek remedies under the tort of intentional infliction of mental distress (IIMD). The test for IIMD is: 

  1. Flagrant and outrageous conduct;
  2. Calculated to harm the plaintiff; and
  3. Caused the plaintiff to suffer from extreme and severe emotional distress. 

Employers should keep in mind that while the tort of harassment does not exist they are still required to provide their employees with a harassment-free workplace as employees still have the option to pursue an IIMD claim if they are experiencing severe mistreatment at work. 

3. Heller v. Uber Technologies Inc. 2019 ONCA 1

The Supreme Court of Canada’s decision in this case will have serious implications for employers who wish to include mandatory arbitration clauses into their contracts. In fact, the decision in this case has the potential to create changes in other types of contracts where there are huge power imbalances between the contracting parties (think: consumer contracts). 

Heller is a class action case initiated by David Heller, an UberEats delivery driver who argued that he and his fellow workers are employees and thus entitled to the basic benefits provided under the Employment Standards Act. Uber’s response was to stay Mr. Heller’s claim and insist that the only appropriate venue for this dispute was through arbitration, a requirement under the service agreement that drivers must sign before working on the Uber platform. This service agreement includes a clause that requires employees to go through a mandatory arbitration process in Amsterdam in order to settle their disputes with the company. While the Superior Court ruled that the arbitration clause was valid, the Ontario Court of Appeal overturned the decision of the motion judge and ruled that the clause was “unconscionable at common law” and thus invalid. Uber appealed the Court of Appeal’s decision to the Supreme Court of Canada. We await that decision. 

Up until now, Canadian courts have insisted that contracts that are entered into freely by both parties are enforceable under the law, but the SCC decision in Heller may add some exceptions to this longstanding principle. 

4. Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512

The decision in Dawe is significant because it reaffirms a notice period cap of 24 months, even where employees are very senior, near retirement and have long service to a company. 

Mr. Dawe was a 37-year employee in a senior management role at the time that he was terminated without cause.  Mr. Dawe sued for wrongful dismissal and the motion judge ruled that he was entitled to 30 months’ notice, in addition to bonus payments throughout the notice period. The motion’s judge reasoned that the employer’s decision to end Mr. Dawe’s employment at the age of 62 was “tantamount to forced retirement” and thus 30 months was appropriate in light of the exceptional circumstances. Equitable Life appealed the ruling.

On appeal, the Court of Appeal reduced the notice period to 24 months because they did not agree that the circumstances were exceptional enough to warrant an award above 24 months. The Court relied on another case, Lowndes v. Summit Ford Sales Ltd., to show that the 24 month notice period already accounts for factors such as the employee’s length of service and age at the time of termination when awarding a 24 month notice period.

Determining the factors necessary for an award higher than 24 months is difficult and will depend on the facts of the case, but the decision in Dawe shows that simply being an older adult in a senior role with a long service does not cut it.

5. English v. Manulife Financial Corporation, 2019 ONCA 612

Where once it was thought that employers could simply accept an employee’s notice of resignation, English shows us that employers should make inquiries if they want to avoid a potentially complicated situation down the line. 

In English v. Manulife Financial Corporation, Elisabeth English, a 66-year-old employee, provided her employer, Manulife Financial, with her resignation after she became aware of Manulife’s intention to change the office computer system. Manulife accepted her offer but informed her that she could rescind or reconsider her resignation. When she heard that the company was going to indefinitely suspend the conversion to the new computer system, she attempted to rescind her resignation. Manulife chose, instead, to accept her resignation. 

While the Superior Court found in favour of Manulife, on the grounds that English’s notice of retirement was clear and unequivocal, the Court of Appeal disagreed with the lower court’s finding, deciding instead that English’s retirement letter was not clear and unequivocal; therefore, she was entitled to withdraw it. The Court of Appeal reasoned that at the time Ms. English informed Manulife of her intention to resign, she also told them she was unsure whether she wanted to resign. Her employer responded by saying that she could change her mind at a later date. 

When Ms. English changed her mind about her resignation, she believed, based on her supervisor’s assurances, that she could easily rescind her resignation. Manulife’s decision to take that option away from her was the nail in the proverbial coffin of their case. It is very possible that the case would have gone in a different direction if the supervisor simply made inquiries into her decision, reminded her that her decision was final and accepted her resignation in the moment. Employers should consider instituting a simplified “resignation acceptance” procedure so that supervisors don’t make one-to-one promises that may make them vulnerable to these kinds of challenges from employees.

The new year is bound to bring with it even more interesting decisions and we look forward to sharing the lessons from these cases with you here! Wishing you all a prosperous 2020!

Please get in touch if you require any legal counsel in the new year.

Bathroom breaks come up frequently in news stories about workers’ rights. The City of Hamilton just narrowly avoided a transit strike where bathroom breaks were a major issue. A City of Ottawa transit worker, calling himself a “whistle-blower” also recently spoke about lack of “recovery time” for drivers – aka not enough time to go to the bathroom between bus runs. Ottawa City Transit workers currently have three minutes per hour for “recovery” although drivers say that the routes are so tightly timed that they rarely are able to take those three minutes. In addition to transit jobs, lack of time for bathroom breaks is also something we see come up for workers on continuous production lines or warehouse workers. So what’s the law on time to go to the bathroom?

The Law on Breaks

While every province in Canada is governed by a different employment standards statute, most have similar provisions around hours of work and breaks. Some workplaces will be subject to federal regulation and governed by the Canada Labour Code. Federal legislation applies to industries that cross borders or with national interest – banks, airlines, telecom companies and interestingly the City of Ottawa’s transit system because it crosses into Quebec. 

In this post, we will focus on the law in Ontario, which is set out by the Ontario Employment Standards Act, 2000 (ESA). 

The ESA requires that employers provide employees with an uninterrupted 30-minute eating period after no more than five consecutive hours of work. The 30-minute break is unpaid. Employees have to be “free from work” and can leave the workplace. As far as breaks go, that’s it! The ESA does not require the employer to provide the employee with coffee, smoke or bathroom breaks. 

Notably, the ESA does have many exceptions. For example, most professionals (lawyers, doctors, veterinarians, etc.) are exempt from many parts of the ESA. No bathroom breaks for us! 

If you can’t hold it for five hours

Five hours is a long time for some of us to wait to go to the bathroom. In many instances, employers will let employees regulate their own bathroom needs. If the employee must remain at the workplace during the break then the bathroom break time is considered to be working time under the ESA. 

There are other cases where an employee going to the bathroom shuts down the whole operation. This is true for drivers, cashiers, assembly line workers, parking lot attendants, etc. etc. In these cases, the employee really may have to figure out how to hold it for five hours. 

An exception to the legs-crossed-for-five-hours requirement will exist where the employee can demonstrate that they need accommodation, under the Ontario Human Rights Code, for medical reasons. An employee would need to get a doctor’s note, or other medical form required by the employer, setting out that they need access to a bathroom more frequently for medical reasons. In most cases, the employer will have to comply. An employer would not have to accommodate an employee’s medical need for more frequent bathroom access if they could demonstrate that to do so would be an undue hardship. 

The Ontario Ministry of Labour has a nifty tool and a handy guide if you’d like to learn more about hours of work and rest periods or get in touch to set up a consultation with us!

Getting fired is hard. Firing someone is just as hard, even if you are unhappy with that employee’s performance. Ending an employment relationship happens for many reasons, from poor performance to fit to business restructuring. Employees leave for similar reasons – they don’t think the company is living up to its promises, they’re experiencing feelings of isolation or a new job has come up.

Ending an employment relationship does not need not be a polarizing, bipartisan, us-versus-them scenario. While some extreme situations may arise (such fraud or competing against the employer), the majority of the time both parties kinda know they should go their separate ways. Both are a bit unhappy, both are either remembering the long-ago honeymoon or having regrets about ever entering into this relationship – and both are unsure how to get out.

For many tech startups, the termination may involve a long-term friendship, a near-founder type role, or an early commitment to this relationship lasting forever.

Our experience with most employers, especially with startups, owner-operators, and small businesses, is that terminations are just as painful and emotional for the person having to trigger the termination. 

5 Tips to Terminate without Tears

Here are 5 tips to terminate without tears:

  1. Be empathetic: Put yourself in the employee’s shoes and avoid humiliating theatre. This will help lower the employee’s temperature to accept the termination package sooner.
  2. Be rational: Acknowledge the range of emotions everyone is feeling, but rise above it and think about how you each will feel 3 months from now. Don’t do anything you’ll regret when the dust settles.
  3. Have contractual certainty: Terminations are waaaaaaaay easier if there is a reasonable, readable, enforceable termination provision the parties can rely on. Do it for your own peace of mind, as well as the math of eliminating the battle over how much notice to give. Have a termination letter and release ready to go at the termination meeting that reflects the contractual entitlements.
  4. Context matters: When enforcing the contract termination provisions that you hopefully have in place, contextualize those terms to the circumstances surrounding the termination. Do the original termination terms still make sense? Do you have an additional business risk to cover off? Do you have reason to not trust the employee with your digital data? You can’t go below the contract terms, but you may want to give more notice than the basic amounts in the contract to force a post-employment restriction.
  5. Math matters even more: As much as you may be plugging your nose to pay out a termination notice, remember that the excessive costs and polarizing results of litigation will smell worse. Usually being a bit more generous than you want to be upfront will result in better business math longterm. 

If you are looking for a modern legal strategy for your terminations, get in touch.

There was a time when working away from a brick and mortar office was considered a luxury only afforded to those at the very top of the organizational structure – out of reach for anyone else. Today, all sorts of positions are advertised with a remote working option, in part due to the ever-growing desire amongst today’s workers to have options in their workplace. In an effort to reel in the best and the brightest, many employers in this new economy include remote work into their growing list of workplace perks.

While remote work can be integrated into more workplaces than previously imagined, employers need to be proactive and prepare in advance of any large-scale movement towards offering a remote working option. Here are some tips to help you successfully build a remote working model in your workplace.

Hot Tip 1: Create a Sound Policy

Make sure every employee understands the workplace policy around remote work including which roles are eligible for remote work arrangements and who is eligible to participate. Just because you have a workplace where remote working is an option does not mean that every employee will be entitled to it. In most cases, working remotely will be a luxury and employees should be informed about what they need to do in order to access this option (e.g. demonstrate that they are responsive, self-starters). Also, some roles are not conducive to a remote working option – for example, managers may need to be in the office to support their subordinates – and those ineligible need to be informed

For individuals in federally regulated industries, a recent Canada Labour Code amendment permits employees to request flexible work arrangements after 6 months of continuous employment. The employer can accept the request in its entirety, partially accept the request, or reject the request. The employer can only reject the request in specific circumstances, including if the employer can establish that they wouldn’t be able to provide the employee with sufficient work or if they were unable to reorganize the workplace in such a way that would make the arrangement successful.

Hot Tip 2: Connectivity

It is impossible to work out all of the kinks prior to launching a remote working plan, which is why it might be helpful to see the first few months of the program as a test period. Keep in touch with your employees and note any connectivity or integration issues.

Also, take stock of how you treat your remote employees as compared to the other employees in your organization. Do you find it more difficult to trust their commitment to the organization when you do not see them every day? Look for ways to address this insecurity as feelings of distrust can have detrimental impacts on the success of a remote program. For instance, have a weekly check-in meeting with your remote-staff and your brick and mortar staff about ongoing projects and office happenings. These kinds of meetings will ensure the relationship between employees and your relationship with the team stay intact.

Hot Tip 3: Accountability

Creating a culture of accountability among your remote workers is essential if you hope to have a well functioning remote program. It is important that you make it clear that remote employees must meet the same goals as non-remote employees. This may not be especially difficult given that much of the research around remote work suggests that workers are more productive and, in fact, work more hours when they work remotely (likely because remote workers feel guilty about their arrangement and tend to overcompensate).

Just as you would focus on ensuring the remote employee is aware of their responsibilities, you should spend some time with the supervisor who will be managing the remote employee to ensure they are equipped to handle this transition.

Depending on the company model, it may or may not be appropriate for the remote employee to work flexible or irregular hours so long as they are able to meet their targets. In some instances, this may not be possible, and in those cases you should clearly articulate that the employee must work conventional hours.

Hot Tip 4: Include Facetime

One of the reasons remote working arrangements are so common in the modern workforce is because of the ease by which individuals can communicate. Your teams are likely already skilled in communications such as email or chat, so integrating someone who is not physically in the office may be easier than you think.

This type of communication, however, is not always the most appropriate way of interacting with your employees, so it is important that you continue to engage with remote employees in face-to-face communication as well as over the phone. As you can probably imagine, providing critical feedback is probably best reserved for a conversation over the phone or an in-person meeting. Remember: in most instances, a remote employee will still be able to come into the office occasionally or have a conversation over the phone or via video chat, so be sure to make space for those kinds of communications.

Hot Tip 5: Equipment

Ensuring your remote workers have the proper equipment to do their jobs remotely is an essential part of a remote working program. Some workplaces don’t mind their employees using their personal computers for work, while others find it safer to provide their employees with some equipment. What you are able to offer will depend on the type of equipment your employees need as well as your resources.

Make sure to take down the serial numbers of all the equipment you provide as you will need a way to identify the items you need to recover in the event that the employee leaves the company.

Takeaways

Jason Fried, one of the biggest advocates for remote working arrangements and the co-founder and CEO of Basecamp, once stated that “work doesn’t happen at work” a pithy way of saying that people do not need to be in the workplace in order to create. A trusted employee in your workplace is not doomed to fall prey to distractions simply because they are working from home. In fact, being in a space where they have full control over their environment is likely going to increase happiness and reduce attrition. Not all workers want to work remotely or should work remotely, but some employees well suited to this arrangement will appreciate this offering.

If you have any questions about how to introduce remote working into your organization or would like us to draft a remote working plan, please get in touch.

Cooperative education programs have become a crucial part of the educational experience as students and institutions recognize that on the job training enhances the overall educational experience. A good co-op can ground a student’s in-class learning by introducing them to practical “real world” problems. If the placement goes well, students may be offered a job with the company or provided a positive reference in their industry! It is no wonder that students flock to this option when it is available.  

What Does an Employer Get Out of It?

Employers stand to benefit the most from co-op placements because they acquire a cost-effective human resource that can support their team during peak periods and offer a fresh perspective. Employers can also claim the Ontario Co-operative Education Tax Credit, which offers the employer a credit of up to $3,000 per student, per work term (on average, work terms are 4 months long). Eligible employers can file a Schedule 550 with their tax return in order to receive the credit.

Legal Requirements for Employers

The Employment Standards Act (ESA) explicitly excludes co-op students, meaning the ESA does not apply to them. A student is only regarded as a co-op student if they are working under a program approved by an educational institution. The ESA describes an approved program as being one of the following:

  • A secondary school student who performs work under a work experience program authorized by the school board that operates the school in which the student is enrolled.
  • An individual who performs work under a program approved by a college of applied arts and technology or a university.
  • An individual who performs work under a program that is approved by a private career college registered under the Private Career Colleges Act, 2005 and that meets such criteria as may be prescribed.

If the student does not fall under one of the categories listed above, then the worker would be categorized as a fixed-term employee. 

Because co-op students are excluded, employers are not required to provide co-op students with the statutory entitlements articulated in the ESA, including minimum wage, vacation pay, breaks and termination pay. If however, an employer’s current co-op student’s contract references ESA entitlements, the employer will be required to provide these entitlements to the student. 

While employers are not required to provide ESA minimum standards to their co-op students, some companies will provide their students with “perks” in an effort to get the best and brightest to join their team. 

Ontario employers who hire co-op students are required to abide by the Ontario Human Rights Code and the Occupational Health and Safety Act with respect to their treatment of these students. For example, employers cannot discriminate against co-op students based on a prohibited ground or ignore the harassment claims they make. 

Takeaways

Remember that a co-op placement may be the first job a student has in their preferred industry, so employers have a responsibility to make the work challenging, to offer the student an opportunity to hone their skills and to provide a meaningful mentorship.  Remember, during the placement, the student is “interviewing” you just as much as you are “interviewing” them, so it is to your benefit to create an environment that they want to come back to.

If you looking for legal counsel regarding your co-op student obligations and/or contracts, get in touch!

Holiday parties are a great opportunity for employers to engage with their employees in a relaxed atmosphere. While it is important for everyone to enjoy themselves in the lead up to the holidays, employers should try to strike a balance between having a good time and an atmosphere reminiscent of the kind of antics you would see on NBC’s The Office. With your company holiday party just around the corner, we thought it would be an opportune time to provide you with tips on how to make it a great time for everyone.

1.Managing Alcohol Use

Alcohol service invites the most risk for employers. While employers can decide not to serve alcohol, many employers will provide it simply because it is expected by many party-goers. In order to reduce alcohol-related risks, employers should consider limiting alcohol consumption by offering employees a limited number of drink tickets or having a cash bar rather than an open bar. Hosting the party at an off-site location may help with this as servers can be instructed not to serve alcohol to people who appear intoxicated. Be sure to have alternative transportation options advertised and readily available on the night of the event.

2. Offering Other Drink Options

Not all your employees will drink alcohol, so having other drink options is essential to creating an inclusive environment. Most parties will offer attendees water or soda as alternatives, but it is always impressive to attend an event where non-drinkers have a fancy mocktail as an option. Your non-drinking employees will be impressed and your drinking employees will appreciate having another option once they run out of drink tickets.

Remember, people choose not to drink for a wide variety of reasons, including for health and religious reasons, and it is never appropriate to ask someone why they are not drinking.

3. Curating an Invite List

Some employers will only extend the party invite to certain employees and leave out other essential members of the team (for instance, only inviting the sales team and not support staff). This is never a good idea as it creates unnecessary discord between different members of the team. Some employers reason that they do this in order to avoid having people attend the event out of obligation. This can easily be remedied by informing all employees that the holiday party is entirely optional, so they can send their regrets without fear but still feel included in the festivities.

4. Preventing Harassment and Violence

Employers should remind their employees about the company’s policy on harassment and violence in advance of the holiday party. While the party may take place outside the office and/or work hours, the employer will be responsible for any inappropriate behaviour that takes place at the party, just as they would if the behaviour took place in the office. Employers should be mindful of decorations or activities that may contribute to unwanted or uninvited behaviour or advances,  such as mistletoe or photobooths. Employers should also pay attention to employees with pre-existing workplace disputes as a change in environment and a little liquid courage is sometimes all that is necessary to set things off!  

Employers and managers should also try to set a good example by behaving professionally at the party in the hopes that employees will follow suit.

Final Thoughts

The office holiday party is a time to celebrate the end of the year joyously with the people you likely spend the most time with over the course of the year. While making the party safe and inclusive does take a little more effort, you’ll be better positioned to have fun at these events if you feel like your entire team can truly enjoy it.

SpringLaw would like to wish you very Happy Holidays and a wonderful New Year! Please enjoy the season responsibly.

If you require any legal counsel regarding organizing safe and inclusive workplace events, please get in touch!  

Saving provisions are widely used in employment agreements to ensure that even if a decision-maker finds that some aspect of some clause is not enforceable due to the fact that it could possibly, maybe, one day, maybe, sorta violate the Employment Standards Act (ESA), the saving provision will communicate to that judge that this was not the employer’s intention to do so. 

A saving provision did not work for the employer in the recent case of Groves v. UTS Consultants Inc., 2019 ONSC 5605. The contract, in this case, violated a few parts of the ESA and the contract’s saving provision did not do its job of saving! 

ESA Violations in Mr. Groves’ Contract

First off, this case involved the sale of a business. The purchasing company contracted Mr. Groves,  the founder and president of the selling company, to have him continue on with the purchasing company as an employee. Mr. Groves’ employment contract with the purchasing company contained a clause that attempted to waive his years of service with the selling company in the event of a termination from the purchasing company. The court ruled that this provision violated section 9(1) and 65(2) of the ESA, regarding the length of service in the event of the sale of a business and length of service for the purposes of determining entitlement to severance entitlements. 

The court also found that the contract violated section 60 of the ESA because it stated that pay in lieu of notice would be calculated on “base salary only.” Section 60 of the ESA requires that the employer cannot reduce wages or alter any other term or condition during the employee’s notice period. Basing pay in lieu of notice on “base salary only” excludes variable compensation, as well as vacation pay or pension contributions.  

Not Saved by the Saving Provision

The court considered the following saving provision in Mr. Groves’ contract: 

Notwithstanding the foregoing, the Company guarantees that the amounts payable upon termination, without cause, shall not be less than that required under the notice and severance provisions of the Employment Standards Act.

Previously courts have “read up” termination provisions that did not comply with the ESA where the contract also contained a saving provision that communicated the employer’s intention to comply with the ESA. 

In the case of Mr. Groves’ contract, the court declined to do so, stating instead that the employer had sought to contract out of the ESA and that saving provision could not be used to “rewrite the express language in an agreement to cause it to comply.”

Takeaways

Mr. Groves was offered 13 weeks of notice on termination by the purchaser. The court awarded him 24 months! 

This decision draws attention to the need to have extremely carefully crafted employment contracts in order to create certainty around entitlements on termination. Saving provisions will not reliably save poorly drafted provisions.

If you need help getting your contracts in order, get in touch!

You’ve been asked to meet with HR or People Ops. You may – or may not – be aware of what the meeting is about, but you’re a little rattled. You’re told the company will be conducting an investigation, meaning a matter is being taken seriously. You wonder whether you should go it alone, or talk to a lawyer – someone who can help you navigate an unfamiliar process. 

In short – yes! Speaking with a lawyer is a good idea. Here’s what they can do for you: 

Ensure that you understand the allegations – If you have not been told the allegations made by the complainant(s), or if you have been given only partial information, a lawyer can assist you in obtaining and thoroughly understanding the allegations. You will then be prepared for your interview, and in a better position to give a complete statement of the facts (i.e. your side of the story).

Ensure that policies are being followed – Your workplace likely has a policy addressing how and when workplace investigations will be conducted. Your lawyer will help you understand your rights under the policy and under the law. If the investigator deviates from a process articulated by the policy, a lawyer will assist you in determining whether, when and how to advocate for yourself, to ensure that the process is followed and procedurally fair to you. 

Help you navigate your communications with the investigator – Not all investigators are properly trained, and they can err in a number of ways, including failing to gather all the relevant information, failing to properly document all of the steps in the investigation process, and failing to provide timely communication as the investigation progresses. 

Intervening as a respondent is a delicate process because an investigator’s role is to make important determinations that will affect you. The last thing you want to do is needle the fact-finder. Rather, respondents should be cautious and strategic about each communication with an investigator.

Inform you of the process and help you prepare for it –  Often workplace investigators will not permit lawyers to attend your interview(s) with you (particularly if the investigation is an internal one). Since a workplace investigation is not a police investigation, you don’t have a legal right to have a lawyer present. Instead, a lawyer can help you plan and prepare in advance for your interview(s). They can discuss possible disciplinary actions the employer can take based on your history (i.e. first instance of misconduct vs. a pattern) and the gravity of the allegation(s). They will steer you to the important subject matter. 

Your lawyer can also help you navigate interim measures implemented by your employer and propose how such measures might be modified to feel less punitive (e.g. if your employer places you on a leave for the duration of the investigation).

Ensure the investigator has all the relevant information – The investigator’s determination is only as good as the information they have. Once your lawyer has a clear understanding of the allegations, they can advise you on the type of information to produce to support your response and, if applicable, what witnesses to suggest that the investigator interview.  The investigator may or may not choose to interview your suggested witnesses, but the names are still worth raising, along with your reasons for your suggestions. 

Notably, a lawyer with experience in workplace investigations will help you decide what is relevant and when to draw the line and let the investigator do their job. 

Provide general support and coaching – The process is likely to be an intimidating one, producing all sorts of emotions and you may have trouble staying focussed and concise as a result. Your lawyer will be able to support and advise you on how to navigate this process, advocate for yourself in a concise and strategic manner that does not alienate the investigator, and point you to resources to cope with negative feelings about the investigation. 

Final Thoughts

From a cost standpoint, some lawyers offer unbundled legal services (also known as ‘limited scope’ or ‘discrete task representation’) and pre- or mid-investigation consultations about process are well-suited to that model. One or two consultations are sometimes all that is needed to put a respondent’s mind at ease and get a complete and accurate version of their side of the story on the table. Employment lawyers with expertise in conducting workplace investigations are best suited to help you when you are a party in a workplace investigation. 

SpringLaw’s Marnie Baizley is an employment lawyer and trained workplace investigator (AWI-CH), who regularly advises parties in investigations. Get in touch if you are in need of guidance!