Investigators conducting fair, thorough investigations have considerable latitude
When conducted with the appropriate level of procedural fairness, workplace investigations are a critical tool, and in many cases a legal requirement, for employers seeking to maintain safe, respectful, and compliant workplaces. A fair investigative process allows employers to rely on findings when making management or disciplinary decisions, reducing legal and reputational risk.
A recent decision of the Federal Court of Canada, Andruszkiewicz v. Canada (Attorney General), 2023 FC 528, provides further guidance on what procedural fairness requires in the context of workplace investigations and clarifies the scope of an investigator’s discretion.
At its core, procedural fairness is grounded in neutrality and transparency. Parties, particularly the responding party, must understand the case to be met and be given a meaningful opportunity to respond to the allegations. While there is no set formula on the process of an investigation, the process must be fair in substance. The goal is to avoid any notion of bias.
The investigator failed to interview all witnesses she identified.
The manner, order, and method of interviews were unfair.
The investigation exceeded timelines set out in the employer’s policies.
The court rejected these arguments and found no breach of procedural fairness. In doing so, the court emphasized that investigators, whether...
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