When faced with a workplace allegation of misconduct, it is imperative for employers to investigate before reacting to such allegations. Employers should be prepared to question all those involved, and then allow the accused individual(s) to respond to the evidence and allegations at hand. Not only will this allow for an employer to implement more effective corrective measures, but also to defend any claims if challenged through litigation.
A case that speaks to the importance of workplace investigations following an allegation is Ludchen v. Stelcrete Industries Ltd. 2013 (ONSC 7495). Specifically, in this case, Ludchen was accused of making anti-semitic remarks aloud in the presence of other co-workers; these remarks were directed towards the owners of Stelcrete Industries. The report came from an individual undercover investigating a workplace drug-problem. However, this individual was never questioned. At best, the employer relied on hearsay evidence as the basis for the decision to terminate Ludchen for just cause; accordingly, Ludchen received no termination pay when dismissed.
Ludchen challenged the dismissal as unjust and ultimately was successful at trial. The employer here could not establish sufficient evidence to support the termination. The time that had elapsed since the incident resulted in faded memories of witnesses which could not be relied upon by the court. Ludchen, therefore, received 12-months worth of salary for wrongful dismissal.
Diligent workplace investigations will aid in a defense against a claim of wrongful dismissal when done so correctly. Employers should always keep a tangible record of investigations and witness statements. Overall, this serves as a reminder to employers that decisions to terminate for misconduct should be done so after a thorough investigation renders enough evidence in support of such decisions, and the accused has had a chance to respond.