The Duty to Investigate

Written on behalf of Peter McSherry
Magnifying glass illustrating the duty to investigate workplace allegations
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A recent decision in British Columbia[1] has drawn fresh attention upon an important issue in employment law.

The Fundamentals

An employer who makes allegations of serious misconduct against an employee must conduct an impartial investigation into the questioned conduct of the employee. The failure to do so will not only weaken the evidence of wrongdoing against the employee, but more significantly may lead to an award of additional damages. This issue has been reviewed previously.

Incremental Damages

This damage claim is over and above the severance obligation owed to the employee whether the severance sum is established by common law or judge-made law or set by a contractual term. The term for these additional damages is “moral” or “aggravated” damages.

Why Awarded?

The purpose of this award is to compensate for mental distress or suffering of the employee. Medical evidence is certainly preferred but it is not mandated. The case for such damages may be proven by the observations of family and friends.

Recent Case

The newly decided precedent case involved a wild life organization which terminated a long term senior manager for just cause. It not only lost the case for “just cause” but also failed to conduct a proper investigation to support its case. Allegations were made of dishonesty. The employer asserted that the employee had misappropriated company funds at the time of termination, in its defence and also continued to make this assertion in the case to the close of its evidence at trial.

The company, did drop this position after the evidence had been finished, but still in court in final argument, made claims of “financial mismanagement”, which was lowering its defence to negligent conduct as opposed to deliberate theft.

The court was also moved to this award by the employer’s decision to force the employee out of the company provided residence on two months’ notice, just after her daughter’s death and when her husband was quite ill.

This conduct was grounds for the award of aggravated damages of $30,000. The severance award was set at 24 months. It is to be recalled that aggravated damages are non-taxable, a considerable extra bonus.

Educate Yourself on Your Legal Rights

When facing a dismissal, particularly in the stressful context of facing allegations of serious wrongdoing, legal advice is paramount. Get advice and know your rights.  Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.





[1] O.W.L. v Day