2 Chapter 2: Legislation and Other Agreements

When conducting investigations, an investigator must be cognizant of any legislation in force in the jurisdiction or agreements within the organization that may have bearing on the issue being explored. It is critical that the investigator conducts the investigation in such a way that it does not violate any applicable legislation, workplace policies or collective agreements.

A high-level review of applicable legislation and possible policies will be discussed in this chapter. This is not an exhaustive list because organizations are bound by different pieces of legislation and each will have various policies or procedures specific to the organization. Each investigation will be unique and it is incumbent upon the investigator to familiarize themselves with the applicable policies and procedures of the organization as well as seek assistance if they are unsure which legislation is applicable to their investigation.

Privacy

The nature of an investigation is to seek information and to uncover the truth, but in the pursuit of the truth one must be mindful of the various privacy legislation that is applicable in the workplace. An investigator does not have an unfettered right to review employee records, health files, or view an employee’s personal information. There is privacy protection via several pieces of legislation in Alberta as well as under the common law.

Employees have a general right to privacy in the workplace. Investigators must have a purpose when they want access to employee documents such as discipline records, accommodation records or other personal information. The purpose must be clear and reasonable to seek out personal information on an employee for an investigation, and the investigator must not engage in a “fishing expedition” to snoop around and see what they can find that applies to the matter at hand.

• Alberta Personal Information and Protection Act (PIPA)
• PIPA applies to provincially regulated private sector organizations, businesses and, in some instances, to non-profit organizations for the protection of personal information and to provide a right of access to an individual’s personal information. Under PIPA there are special rules for the collection, use and disclosure of employee information. What this means is that organizations can only collect personal information for reasonable purposes and to the extent reasonably needed for that purpose and they may only use or disclose that information for specific purposes as outlined in the Act.
• For instance: An organization can disclose personal information without consent if: it is reasonable for the purposes of an investigation or legal proceeding; “investigation” means an investigation related to
• a breach of agreement
• a contravention of an enactment of Alberta or Canada or of another province of Canada, or circumstances
• or conduct that may result in a remedy or relief being available at law.^[1]

• PIPEDA – Personal Information Protection and Electronic Documents Act – applies to personal information about customers and employees in the federally regulated sector such as banking, intra-provincial transportation or ports, including personal health information. PIPEDA’s 10 fair information principles form the ground rules for the collection, use and disclosure of personal information, as well as for providing access to personal information.  PIPEDA states that any collection, use or disclosure of personal information must only be for purposes that a reasonable person would consider appropriate in the circumstances.^[2]
• FOIP – Freedom of Information and Protection of Privacy Act – applies to public bodies in Alberta, and requires that personal information must be protected. Individuals who work at provincial public bodies have a right to see their personal information that has been collected by the public body. This is important for investigators as it means that an employee may make a request to view any information collected in the course of an investigation that pertains to them. It will be up to the Privacy Officer of the organization and the government to decide what information is disclosed. This is why it is very important to not make personal comments or assumptions in the investigation. ^[3]
• Common Law– under the common law there is a tort called “intrusion upon seclusion”, this is a tort that gives employees a reasonable right to privacy in the workplace.^[4] What this means is that employers must have a balance between operational requirements such as an investigation and the employee’s privacy rights. An employer must have good reason before they go searching an employee’s computer or utilizing video monitoring equipment. The Supreme Court Stated in the precedent setting privacy case, R v Cole the following:

The Supreme Court began by confirming that employees do have a reasonable expectation of privacy in the personal information stored on their work computer, at least when employers authorize or reasonably expect personal use to be made of such equipment. The reasoning behind this is that computers contain information deemed to be “meaningful” and “intimate” regarding their “likes, interests, thoughts, activities, ideas, and searches for information”.^[5]

Discrimination and Harassment

Discrimination and Harassment regulations in Alberta falls under two pieces of legislation. The first is the Alberta Human Rights Act and the other is the Occupational Health and Safety Act.

Alberta Human Rights Act

The Alberta Human Rights Act is a provincial law that exists to protect against discrimination. Essentially, its purpose is to ensure all persons in Alberta have equal opportunities and are free from discrimination. The Act provides protection under a number of grounds, called “protected grounds.” Protected grounds will be explored later in this chapter.

For employers, this means they must:

• Create an inclusive and respectful workplace
• Remove discriminatory barriers from recruitment and hiring practices as well as job promotion
• Accommodate any employees with special needs^[6]

If an employer fails to maintain the above-mentioned conditions an employee may be subject to discrimination and a complaint may be made which will require investigation. Employees may also complain directly to the Alberta Human Rights Commission, which would conduct their own investigation if the complaint was accepted. For the purposes of this text we will be looking only at in-house workplace investigations of discrimination.

The basis for a discrimination complaint is that a person feels that a protected ground has been violated by something that has occurred in the workplace. Harassment is a form of discrimination and may take the form of unwanted physical contact, attention, demands, jokes or insults. The Alberta Human Rights Act prohibits discrimination (including harassment) in employment based on the protected grounds of:

 

Race – Includes belonging to a group of people, usually of a common descent, who may share common physical characteristics, such as skin colour.

Religious beliefs – System of beliefs, worship and conduct (includes native spirituality).

Colour – Colour of a person’s skin.

Gender – The state of being male, female, transgender or two-spirited. The ground of gender also includes pregnancy and sexual harassment.

Gender identity – Refers to a person’s internal, individual experience of gender, which may not coincide with the sex assigned to them at birth. A person may have a sense of being a woman, a man, both, or neither. Gender identity is not the same as sexual orientation, which is also protected under the Act.

Gender expression – Refers to the varied ways in which a person expresses their gender, which can include a combination of dress, demeanour, social behaviour and other factors.

Physical disability – Any degree of physical disability, deformity, malformation or disfigurement that is caused by injury, birth defect or illness.

Mental disability – Any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder.

Age – The Act defines age as 18 years of age or older, which means that individuals 18 and older are protected from age discrimination. There are three exceptions specified in the Act that allow for age restrictions, but none apply to workplaces. Individuals under the age of 18 are protected from discrimination in all of the protected areas and on all of the protected grounds except the ground of age.

Ancestry – Belonging to a group of people related by a common heritage.

Place of origin – Includes place of birth and usually refers to a country or province.

Marital status – The state of being married, single, widowed, divorced, separated, or living with a person in a conjugal relationship outside marriage.

Source of income – Source of income is defined in the Act as lawful source of income. The protected ground of source of income includes any income that attracts a social stigma to its recipients, for example, social assistance, disability pension, and income supplements for seniors.  Income that does not result in social stigma would not be included in this ground.

Family status – The state of being related to another person by blood, marriage or adoption.

Sexual orientation – This ground includes protection from differential treatment based on a person’s actual or presumed sexual orientation, whether gay, lesbian, heterosexual, bisexual or asexual.^[7]

Discrimination in the workplace is illegal.

An employer cannot refuse to abide by the Alberta Human Rights Act. In fact, an employer is responsible for preventing, investigating, and taking the appropriate actions to maintain a non-discriminatory workplace.

Beyond the core business responsibilities, it is important that organizations take the time to establish a workplace discrimination policy. The policy should state the grounds of discrimination as they relate to employment and the procedure for employees who experience harassment or bullying in the workplace. The employer should make the discrimination policy available to staff in an employee handbook, review it during new hire orientations, and reference it during disciplinary discussions.

It is important to note that the Alberta Human Rights Act protects employees against discrimination within the workplace as well as away from the workplace. If discrimination is based on one of the protected grounds and the incidents occur in connection with their employment the employer has a duty to investigate.

Occupational Health and Safety

In Alberta all workplaces are bound by the Occupational Health and Safety Act. Employers must ensure, as far as reasonably practicable, the health and safety of all workers at their work site. (Section 3(1) OHS Act).^[8] In 2018, protecting employees from psychological hazards such as violence and harassment in the workplace was added into the Occupational Health and Safety legislation. It requires employers to:

• “Investigate any incident of harassment or violence
• take action to address the incident
• prevent it from happening again
• prepare an investigation report outlining the circumstances of the incident and the corrective action
• Employers must retain the investigation report for at least 2 years after the incident, keep it readily available and provide a copy to Alberta OHS on request.
• Alberta OHS officers monitor the employer’s compliance with the requirement to investigate incidents of harassment and violence. Officers can write orders where work site parties don’t demonstrate compliance.”^[9]

Occupational Health and Safety investigations may fall under the purview of human resources in an organization or there may be a separate health and safety department which handles all OH and S investigations. Depending upon the nature of the OH and S investigation it may be handled by human resources, the health and safety department or by an external investigator from the government. It is not uncommon, however, for complaints of workplace violence and harassment to be handed to human resources to be completed in conjunction with a health and safety department.

Other pieces of Legislation

Alberta Labour Relations Act

The Alberta Labour code outlines the rights and responsibilities of employer, trade unions and employees in unionized workplaces. It is important to understand that in a unionized work place the union has the right to represent its members (employees). Investigations that take place in a unionized environment must include the union. A collective agreement in the workplace may outline the steps to be taken in a workplace investigation and the role of the union, the employer and the investigator.

Employment Standards

The Alberta Employment Standards Act provides the rules that govern the employment relations and many terms and conditions between employees and their employer. It sets out the laws for minimum wage, overtime, holidays, job-protected leaves, vacations, hours of work, earnings, youth workers and termination. An investigator must know the employment standards act to be able to quickly and easily identify if any law has been violated.

The Alberta Evidence Act

In the event that a workplace investigation coincides with a criminal investigation, knowing how to collect and store evidence may be important.

The Criminal Code of Canada

We will not be discussing criminal investigations in this course, but it can be the case that an employee who has participated in workplace misconduct may also be facing charges under the criminal code. Incidents such as assault in the workplace, theft, fraud or drug related offences may have a workplace investigation occurring as well as a criminal investigation. A workplace investigation must not hamper any coinciding criminal investigation.

Criminal investigations are held to a higher threshold of proof than workplace investigations, thus one can assume that if a criminal investigation results in a guilty finding, the workplace investigation, which has a lower threshold of proof, would automatically also have the same finding of wrongdoing. Thus, if a criminal investigation has been completed and the employee was found guilty of wrongdoing, then the workplace can simply use those findings in place of a workplace investigation.

However, it is not always the case that a criminal investigation is completed, and the person is found guilty. A workplace may want to conduct their own investigation, concurrently with the criminal investigation. If the person is not found guilty to a higher criminal threshold of proof, they may still be found to have committed wrongdoing in the lower threshold of proof in a workplace investigation. As well, criminal proceedings are notoriously long undertakings. The workplace may not want to wait to find out the result of the criminal case and may want to undertake their own investigation.

Sometimes a criminal investigation may ask to access information, evidence, or witness accounts from the workplace investigation. The investigator should seek legal advice as to how best to provide this information. There may be times where the organization may be reluctant to provide the information if it has a reputational risk or privacy considerations.

Other Agreements, Standard, Policies

Collective Bargaining Agreement

If you are working in a unionized environment there will be a collective agreement in place, also referred to as a collective bargaining agreement. The collective agreement is a contract between the union and employer which lays out the terms and conditions of employment in a unionized workplace.

Often a collective agreement will outline investigation procedures, limitations and/or other provisions that may impact an investigation. The investigation process may be captured in the collective agreement itself, or it may refer to an external policy/procedure.

The Union will want to have an active role in the investigation of any member of the union. Most collective agreements will stipulate that the union must be present when a unionized employee is interviewed by the employer.

“Arbitrators generally agree that whether an employee has a right to union representation in a disciplinary or investigatory context, and the extent of any such right, is dependent upon the language of the collective agreement. It is therefore highly important that employers review their collective agreements to determine an employee’s rights before beginning an investigation of employee misconduct, and certainly before imposing any discipline on the employee.

Collective agreements may contain a variety of union representation rights. They may address issues such as:

• Whether an employee has the right to advance notice of investigation meetings, and how much notice is required;
• Whether an employer must give the union advance notice of an investigation meeting;
• Whether an employee has the right to union representation during investigation meetings;
• Whether the employer must advise the employee of their right to union representation;
• Whether the employee or union will be given particulars of the allegations in advance of the investigation meeting;
• Whether employees who will be interviewed as witnesses have the right to union representation; and
• Whether employees have the right to union representation during meetings at which discipline will be imposed.

Collective agreements typically provide for union representation at all “meetings which could potentially lead to discipline”. Others may simply say that employees have union representation rights at “disciplinary meetings” or “disciplinary discussions”.

Arbitrators have tended to interpret all of those types of clauses as providing union representation not only at meetings at which discipline will be imposed, but also at meetings at which the employer plans to confront an employee with alleged misconduct. Therefore, if there is any chance that a meeting with an employee could lead to disciplinary sanction, it is advisable to have a union representative present at the meeting.”^[10]

The role of the union is to support the employee and provide representation, it is not to help answer any questions or otherwise participate in an interview. The union advises the employee on the proper processes and ensures that the investigation follows due process but cannot hamper of interfere in the process. Unions can be helpful in supporting their members through the stressful investigation process and may be of assistance to the investigator in helping the party to understand the steps of the investigation. All employees involved in a workplace investigation are entitled to union representation, whether they be the complainant or respondent. In some cases, witnesses may request and be afforded union representation.

When a complainant and respondent are both union members it is most helpful to have different union representatives assist the different parties; however, that is up to the union to decide if separate representation is required.

 

Professional Standards

Some professions have a professional code of conduct and professional organizations may want to know the outcome of any internal investigation as it may impact the standing of an employee in that organization. Examples are accountants, lawyers, nurses, physicians, and pharmacists.

 

Organizational Policies

Workplaces often have codes of conduct, discrimination and harassment policies or policies that outline the process for investigations and any reporting responsibilities. It is important that the investigator is aware of the organization’s policies and procedures to ensure that the investigation is following what the company has outlined.

The investigator should request copies of the policies and procedures that relate to investigations as those policies and procedures will serve as the foundation for the investigation. Sometimes investigators have preferred methods or procedures that they feel comfortable using, however they need to be able to set those aside and follow the designated policies and procedures for the workplace where they are doing the investigation. A deviation from the company directives may leave the investigation open to procedural challenges and grievances.

It is important that employers think carefully about how the policies they create or adopt will play out in real life. Employers do not intentionally create policies that are onerous or difficult to administer but often just copy or adopt policies from other organizations that do not necessarily apply to their work site. An investigator may discover that company policies and procedures are not up to date or compliant with current legislation and should advise the employer if this is the case. However, it may not be prudent to adjust any policies or procedures right before an investigation is commenced as it could be construed as changing the rules to benefit one party or another. The investigator should make note of any policies or procedures that are not compliant with current legislation in their report and follow the current legislative requirements.

Policies related to investigations must be practical and not so prescriptive that they cannot be applied when an investigation is required. For example, stating in policy that the entire investigation will take no more than two weeks, or that resulting suspensions with pay will be for no more than 3 days may not be realistic. The desire of all parties in an investigation is to have the matter dealt with as expeditiously as possible, but policies cannot create time constraints on the process that jeopardizes the due process of the investigation.