January 22, 2003 by Israel Foulon LLP
Question: Recently we were alerted to the possibility that one of our employees was stealing company property. We investigated the allegation and have concluded there have been several instances of theft from the company by the employee. Based on the results of our investigation we intend to dismiss the employee for cause. Are we required to share our investigative report with the employee or can we simply terminate his employment for cause?
Answer: You indicate in your question an investigation into the matter has already been conducted. But you have not said whether or not the affected employee was interviewed as part of this investigation. Speaking to the employee in question and giving him an opportunity to respond to the allegations is a crucial part of conducting a proper investigation. A failure to provide the employee with a chance to give his side of the story could result in employer liability for wrongful dismissal damages.
Therefore while you are not obliged to give the actual investigative report which you have compiled to the employee, you should discuss the allegations and give him the chance to respond.
The meeting with the employee whereby he is given the opportunity to respond to the allegations should be part of your investigation. Accordingly you should not terminate the employment of the employee during this meeting as you must be careful to ensure there is a clear line drawn between the process of investigation and the termination process.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@israelfoulon.com. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today