Get it right before pulling the trigger

Date: 2011
Author: Daniel A. Lublin
Publication: Metro

Courts chastise faulty investigations

Employee misconduct may be present but in Canadian workplace law it seldom matters if an employer does not act fairly towards its employee. UPS learned this the hard way in its recent termination of a long term employee.
21 year company veteran Wally Lysecky was only a few years away from retirement when UPS suspected he was accepting kickbacks and, without warning, suspended him from work pending an investigation.
UPS quickly investigated but was unable to find any actual evidence of a theft or fraud. Despite this, it fired Lysecky anyway, believing he must have been involved in some form of wrongdoing. By then, rumours were flying that Lysecky had been fired for stealing the company’s money and, despite its investigation that showed otherwise, UPS did nothing to stop them.
At trial, the Court found that UPS conducted a perfunctory investigation, meaning that Lysecky’s fate had been condemned even before the investigation began. Since UPS suspected a fraud, its investigation pre-supposed that Lysecky was part of it. When the evidence exonerated Lysecky from fraud, UPS continued to blame him for it anyway.
In finding that UPS did not conduct a neutral investigation, the court overturned Lysecky’s termination, awarding him almost one year’s salary. It then penalized UPS for its handling of the matter by awarding Lysecky an additional $20,000 for damages to his reputation.
UPS failed to “get it right” before pulling the trigger and it cost them. The difference between a neutral investigation and one with the appearance of bias often makes the difference at trial. There are clear lessons for both employers and employees:

  • Workplace investigations should be conducted by a neutral third party investigator, or a lawyer retained for that purpose, not a human resources representative. Even the appearance of partiality can undo the results.
  • Employers should resist taking any adverse steps against an employee suspected of fraud, as tempting as it may be, until the investigation is complete.
  • Employees should insist, through counsel, that they be given all the evidence against them before being required to respond to any allegations.