M AC PHERSON LESLI E & TYERMAN LLP LAW YER S : Be Careful What You Wish For 12th Annual National Administrative Law and Labour & Employment Law CLE Conference Canadian Bar Association November 25-26, 2011 Westin Hotel, Ottawa, Ontario
Len Polsky MacPherson Leslie & Tyerman LLP (Calgary) (moderator) Kelly Harbridge Magna International Inc. (Aurora) (management) Bill Johnson McGown Johnson (Calgary) (union) Natalie Dagenais Canadian Human Rights Commission (Ottawa) (neutral) 2
Total Recall Corporation: Canadian manufacturer of iphone apps and other software. 500 employees. Operates in 3 provinces. Privately owned. Robert Wagner: 15-year employee; department manager. Suzanne Smith: 10-year employee; software writer; reports to Wagner. Wagner & Smith have received multiple commendations and awards. No disciplinary records. 3
The Wagner Act During a routine review of customer satisfaction, Total Recall hears rumours that Mr. Wagner sexually harassed customer s employee. They investigate customer complaint. Ms. Smith is contacted. Knows nothing of customer complaint but reports that Wagner sexually harassed her too. Smith doesn t file complaint or ask that disciplinary action be taken, but company decides to investigate her allegation against Wagner. 4
Timing of investigation Total waits 6 weeks to investigate Smith s report because Director of Human Resources away on holiday. 5
Timing of investigation Total waits 6 weeks to investigate Smith s report because Director of Human Resources away on holiday Due diligence by employer? Excessive delay? 6
Timing of investigation Total waits 6 weeks to investigate Smith s report because Director of Human Resources away on holiday Due diligence by employer? Excessive delay? How to use (employee) or neutralize (employer) this fact? 7
Who should conduct the investigation? Director of HR gets written statement from Smith. Hires outside investigator who has been used in past. 8
Who should conduct the investigation? Director of HR gets written statement from Smith. Hires outside investigator who has been used in past. When to hire third-party investigator? 9
Who should conduct the investigation? Director of HR gets written statement from Smith. Hires outside investigator who has been used in past. When to hire third-party investigator? Investigator bias? Known quantity or hired gun? 10
Who should conduct the investigation? Director of HR gets written statement from Smith. Hires outside investigator who has been used in past. When to hire third-party investigator? Investigator bias? Known quantity or hired gun? H.R. to oversee investigation or involve in-house counsel? 11
Who should conduct the investigation? Director of HR gets written statement from Smith. Hires outside investigator who has been used in past. When to hire third-party investigator? Investigator bias? Known quantity or hired gun? H.R. to oversee investigation or involve in-house counsel? Retain investigator directly or through legal counsel? 12
Quality of investigation Investigator uses Smith s statement to question Wagner, other employees, but doesn t interview Smith. All interviews conducted by telephone. 13
Quality of investigation Investigator uses Smith s statement to question Wagner, other employees, but doesn t interview Smith. All interviews conducted by telephone. Cursory inquiry or employer to be commended for being diligent? 14
Quality of investigation Investigator uses Smith s statement to question Wagner, other employees, but doesn t interview Smith. All interviews conducted by telephone. Cursory inquiry or employer to be commended for being diligent? Scope and detail of investigation depends on who will get report or same detail in all cases? 15
Quality of investigation Investigator uses Smith s statement to question Wagner, other employees, but doesn t interview Smith. All interviews conducted by telephone. Cursory inquiry or employer to be commended for being diligent? Scope and detail of investigation depends on who will get report or same detail in all cases? When to issue litigation hold to preserve relevant emails & documents? Who undertakes document review? 16
Quality of investigation Investigator uses Smith s statement to question Wagner, other employees, but doesn t interview Smith. All interviews conducted by telephone. Cursory inquiry or employer to be commended for being diligent? Scope and detail of investigation depends on who will get report or same detail in all cases? When to issue litigation hold to preserve relevant emails & documents? Who undertakes document review? Are employees entitled to separate legal counsel? 17
A witness is located Investigation reveals co-worker who witnessed The Incident but who doesn t want to cooperate. Co-worker reports to other manager who is a friend of Wagner. Worried about repercussions. 18
A witness is located Investigation reveals co-worker who witnessed The Incident but who doesn t want to cooperate. Employee reports to other manager who is a friend of Wagner. Worried about repercussions. What to do with this information? 19
Union involvement Both Smith and co-worker belong to same bargaining unit. 20
Union involvement Both Smith and co-worker belong to same bargaining unit. Practical & ethical issues for management and union counsel? 21
Email logs Wagner uses personal Hotmail account and company computer to communicate with: complainant (before & after complaint revealed); legal advisers (either the union or a lawyer). Copies retained on company hard drive. 22
Email logs Wagner uses personal Hotmail account and company computer to communicate with: complainant (before & after complaint revealed); legal advisers (either the union or a lawyer). Copies retained on company hard drive. How far can employer go accessing and using this information? 23
Email logs Wagner uses personal Hotmail account and company computer to communicate with: complainant (before & after complaint revealed); legal advisers (either the union or a lawyer). Copies retained on company hard drive. How far can employer go accessing and using this information? Forensic computer analysis shows Wagner involved in unrelated criminal activity. Duty to report? 24
Use of investigation report Investigation is complete and report is ready. 25
Use of investigation report Investigation is complete and report is ready. Timing and manner of disclosure? Privilege? Privacy issues? 26
Use of investigation report Investigation is complete and report is ready. Timing and manner of disclosure? Privilege? Privacy issues? Hold until hearing or use in settlement discussions? 27
Use of investigation report Investigation is complete and report is ready. Timing and manner of disclosure? Privilege? Privacy issues? Hold until hearing or use in settlement discussions? Who receives report? Employees? Union? Company Board of Directors? 28
Use of investigation report Investigation is complete and report is ready. Timing and manner of disclosure? Privilege? Privacy issues? Hold until hearing or use in settlement discussions? Who receives report? Employees? Union? Company Board of Directors? Tender report as evidence to court/tribunal? 29
Other potential issues The incident that Smith complains of happened more than a year ago? Limitations? Company takes no action against Wagner and fires Smith claiming she attempted to extort the company and Wagner when she revealed her allegations? 30
Thank You. 31