Investigate, Investigate, Investigate

From Microsoft, it was about great developers (see here for a really geeky reference). For employment lawyers, it’s about great investigations. Employment lawyers often harp on the need to do proper investigations into workplace incidents even when “everyone knows” what happened. Even where the person likely did do something improper that would justify termination, the failure to investigate properly and give the employee the chance to tell their side of the story can be fatal to a wrongful dismissal suit.

The recent Ontario case of Ludchen v. Stelcrete Industries Ltd., 2013 ONSC 7495, is a great example of this that can help educate employers. In Ludchen, a 44-year old plant manager with 10 years of service was terminated after it was alleged he made anti-semitic comments about the plant owners. The court found that the investigation was deeply flawed:

[68] This brings me to the problem caused by the inadequate investigation into this matter. In my view, as a practical matter, it was unwise for Stelcrete to terminate Ludchen’s employment without conducting an independent investigation in order to assess the validity of the alleged misconduct. Further, it would have been prudent for management to confront Ludchen with the allegations and give him an opportunity to respond. 

[69]Most concerning was the fact that prior to the termination Dietsch and Nichols never obtained the names of the employees who had direct knowledge of what Ludchen was alleged to have said…

[70] Having failed to thoroughly investigate this matter at the time, Stelcrete now has great difficulty assembling the evidence to prove the alleged misconduct on which it acted more than five years ago.

The result? A $35,284 judgment against the employer. Bottom line? It pays to do investigations properly.