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Investigations

"Terminating Employees for Cause: A Review of Recent Cases on Just Cause"

Jurisdiction: - British Columbia

"Terminating Employees for Cause: A Review of Recent Cases on Just Cause" is the title of a paper prepared by Michael R. Howcroft.

The paper was prepared for the Employment Law Conference (Continuing Legal Education Society of British Columbia) in May 2010. Mr. Howcroft is a lawyer at Blake, Cassels & Graydon LLP, in Vancouver, BC,

The paper addresses the following topics:

  • Dishonesty
  • Dishonesty During Investigation

"Employee Improprieties – Avoiding Disaster When Dealing With the Dishonest Employee"

Ontario lawyer Howard A. Levitt, at Lang Michener LLP, has written a paper entitled, "Employee Improprieties - Avoiding Disaster When Dealing With the Dishonest Employee" (May 2010).

He presented the paper at the ACFI 12th Annual Fraud Conference and Workshop in Toronto on May 3, 2010. The paper's introduction states: 

This paper will attempt to identify what kind of dishonest conduct amounts to just cause for dismissal, and provide the employer with effective strategies for identifying, investigating and ultimately removing dishonest employees from the workplace, without exposing itself to liability. 

"Workplace Investigations: Avoid Acting First and Asking Questions Later"

When I was researching the paper I presented last Thursday on workplace investigations, I came across this November 2006 paper - Workplace Investigations: Avoid Acting First and Asking Questions Later - written by two labour and employment lawyers at Blake, Cassels & Graydon LLP.

Presentation: "The Law on Workplace Investigations: An Update on Key Developments"

I presented a paper on The Law on Workplace Investigations: An Update on Key
Developments
today at the BC "Employment Law Conference 2010" Continuing Legal Education (CLE). The paper can be found at the bottom of this post. The topics I covered were:

  1. Does an Employer Have a Common Law Duty to Provide the Employee with a Fair Hearing/Conduct an Investigation?
  2. What Exposure to Liability/Damages Does an Employer Face for Failing to Properly Conduct an Investigation?
  3. Conducting the Investigation
  4. The Use of Lawyers as Expert Witnesses on Workplace Investigations
  5. Recovery of Costs Associated With Investigating Criminal Wrongdoing
  6. What Duties do Employees Have in Relation to Workplace Investigations?
  7. Privilege Concerns and Workplace Investigations

The last time I presented at the Employment Law CLE - in 2006 - my topic was Reference Letters.

Alberta jury awards almost $1 million in damages to employee dismissed for sexual harassment

The case of Elgert v. Home Hardware Stores Limited, 2010 ABQB 73 (CanLII), concerned a senior employee in a management position was dismissed for just cause based on alleged sexually harassment and insubordination. At the time, he had worked for Home Hardware for almost 17 years and was over the age of 50.

The alleged incidents occurred in late 2001/early2002 at the Home Hardware distribution centre in Wetaskiwin, an hour's drive from Edmonton.

The first complainant alleged that the Plaintiff, Mr. Elgert, pushed her into a dark storage room, pushed her up against a table, held her hands down and wiggled his body between her legs.

The second compliant alleged that a few months later while she was cleaning a first aid room in the warehouse, the Plaintiff entered the room, turned off the light and shut the door. He then bumped her backwards until she fell onto a cot. He laid on top of her, and lingered there.

One of the complainants was the daughter of the head of the distribution centre.  read more »

Employer to pay $20,000 in punitive damages for not fully investigating allegations before dismissing for just cause

The employer in Nishina v. Azuma Foods (Canada ) Co. Ltd., 2010 BCSC 502, was ordered to pay $20,000 in punitive damages for dismissing an employee for just cause without properly investigating the allegations of misconduct.  

The case is also of interest in that the court addressed:

  • the contractual force of workplace policy handbooks; and
  • the degree to which different cultural norms - in this case, the importance of an apology in Japanese culture - will impact on the just cause analysis.

Background 

The employer was a Japanese company with operations in California and BC. It produced Japanese ready-to-eat frozen food products.

The employee was a Japanese citizen.  At the time of her dismissal, she was 43 years old, had 6 years, four months service and was employed as a quality control associate. She earned approximately $52,000 per year.     read more »

"Conducting A Harassment Investigation, The Do's and Don'ts"

Alberta lawyer Carolyn Hutniak has prepared some useful guidelines for employers on "Conducting A Harassment Investigation, The Do's and Don'ts" (undated).

Does an employer have to produce a third-party investigator's report in the course of litigation?

Jurisdiction: - British Columbia

Does an employer have to produce a third-party investigator's report in the course of litigation?

The BC Supreme Court addressed this issue recently in Bank of Montreal v. Tortora, 2009 BCSC 1224, where the defendant former employees brought an application seeking that the Bank of Montreal (the "Bank"):

  1. produce the documents in a third-party investigator's files; and
  2. provide a list of documents over which it claimed privilege that satisfied the requirements of Rule 26(2.1) (i.e., list the documents individually and describe them so that the validity of the privilege claim could be tested).

Background

The Bank dismissed two long-term employees on December 3, 2008 and filed a lawsuit against them on January 6, 2009, claiming that:  read more »