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The Cost of Improper Investigations

A complete and thorough investigation, well documented, protects the company against liability

Posted by Joe Gerard on May 13th, 2010

The price tag attached to cases involving inadequate investigations continues to increase. When employers jump to conclusions based on uninformed observations, the outcome can be costly. Recently, there has been an increase in value of fines assigned to companies found guilty of FCPA violations, bribery, health and safety violations, as well as acts of harassment and discrimination in business practices. Harsher penalties have been handed out in the hopes employers will learn their lessons and properly enforce both laws and company policies.

Employers and human resource departments need to understand the importance of conducting prompt, thorough investigations. Complete investigations allow investigators and employers to collect all of the facts and information required to make appropriate decisions. This prevents the wrongful termination of an employee based on presumptions and uninformed opinions.

The GTAA Case

Here is a summary of some of the key points directly outlined in the case “Greater Toronto Airports Authority vs. Public Service Alliance Canada Local 0004“:

“In April 2010, Arbitrator Owen Shime awarded over $500 000 in damages to a former unionized employee at the Greater Toronto Airports Authority (GTAA), who was terminated for sick leave fraud. Arbitrator Shime found the GTAA failed in taking reasonable steps to find out the truth regarding the employee’s medical condition before terminating her. At the time of termination in 2004, the Grievor had been an employee of the GTAA for 23 years, with no record of absence or discipline. Upon notice of her termination, the employee did what any other employee in her position would have done—filed a grievance.

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The employee required a surgical procedure on her knee, and was given notes by both her surgeon and physiotherapist, requiring she take a medical absence from work for a minimum of four weeks to properly recover. The GTAA had demanded the employee return to work a week before she was expected to, and due to the healing process, her physiotherapist sent a letter to the GTAA explaining her reasoning for requesting the employee not return to work until the completion of the original medical leave. The GTAA required a note from her surgeon, who contacted the GTAA and was upset with the fact they were questioning his diagnosis. The physiotherapist told the arbitrator that the GTAA had never contacted her to discuss the progress and treatment of the Grievor.

The employer demanded the employee return to work early because they had placed the employee under surveillance and had video footage of her completing small errands, such as groceries and picking up medication. The GTAA failed to factor in the observation that the Grievor spent majority of her time at home and wasn’t engaging in any unusual activities leading to the conclusion of abusing sick leave. The Grievor was told she would be meeting with managers to discuss modified duties for her return to work, instead, the meeting wasn’t about modifications, it was about her being suspended pending an investigation. The questions the Grievor was asked during the meeting made her realize the GTAA had someone following her while she was on medical leave.

The surveillance made the Grievor feel like she was being stalked by her employer, which caused her posttraumatic stress disorder to resurface, as she was hurt the most by the betrayal and lack of trust her employer was demonstrating when she had been a model employee. From the Grievor’s point of view, she had knee surgery, did everything her doctor told her to do, went back to work as quickly as possible, and for all of this, she was being fired.”

Implications for Employers

In the case of the terminated GTAA employee, the employee made it very clear she didn’t want to be reinstated in her previous position, as she had lost all respect for management at the GTAA. She also didn’t want to return to a hostile work environment. When reviewing the details of the case, it was very clear to see the holes in the investigation that was conducted by the GTAA. In this particular case, the statements made by the Greivor were consistent with those of the doctors she sought treatment from for various issues during and after her surgery and termination from the GTAA.

When conducting investigations, employers need to look at the employee’s history and length of employment.

  • Are there patterns of absences?
  • Has the employee received warnings or been disciplined for violating company policies?

Employers need to act in good faith, leaving behind predetermined notions that could interfere with the investigation. As in the example above, it was evident the GTAA managers already believed the Grievor to be in the wrong, hindering their ability to conduct a fair investigation. Examine all facts and evidence with an open mind to see the full picture. If there’s a chance that personal matters may interfere with the investigation or those conducting the investigation are directly involved in supervising the complainant, bring in a third party investigator.

According to the e-mail alert “Ontario Arbitrator awards over $500,000 in damages to terminated employee” by Emond Harnden LLP:

“This is the largest award of damages following the termination of a unionized employee that has ever come to our attention. In our opinion, it represents a marked departure from established principles of arbitral case law. The employer has applied for judicial review of the decision. Employers should remember to exercise caution in terminating employees for cause, particularly where the employee is on disability leave. Employers should act only where the allegations of cause are supported by a clear evidentiary foundation, established after a proper and thorough investigation of the facts. Employers should also seek independent medical evaluation of an employee’s restrictions where necessary.”

If managers are going to expect honesty and integrity from their employees, their employees require the same trust and honesty to be reciprocated by employers. Failure to conduct a fair investigation and gather all of the facts before making a decision has landed the GTAA in very hot water regarding the termination of this particular employee. This case serves as a lesson for other employers, stressing the importance of conducting fair, thorough investigations, as well as respecting your employees.

Joe Gerard
Joe Gerard

CEO, i-Sight

Spend my days showing off the i-Sight investigative case management software and finding ways to help clients improve their investigations. Usually working with corporate security, HR & employee relations, compliance and legal teams.

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