Privilege and Workplace Investigations
By Sarah Graves
North Bay General Hospital v. Ontario Nurses Association (decided by Arbitrator Jasbir Parmar on October 13, 2011) provides important practical reminders for employers involved in workplace investigations.
In this case, North Bay General Hospital received a complaint that an employee had engaged in bullying and harassment against co-workers. The Hospital retained an independent investigator who was a practicing lawyer to conduct an investigation. Following the investigation, the employee was disciplined. The Union, the Ontario Nurses’ Association, filed a grievance alleging that the discipline was unjust and retaliatory.
This case dealt with a request for pre-hearing production of documents by the Union. In particular, the Union sought production of all communications between the investigator and the Hospital, specifically HR personnel and a Vice President. The Hospital objected on the grounds that the communications were protected by solicitor-client privilege.
The Arbitrator held that the investigator’s communications with the Hospital were NOT protected by solicitor–client privilege and ordered the Hospital to produce: “all emails, notes of conversations and other conversations.”
The Arbitrator noted that when faced with a complaint many employers hire an outside investigator while others chose to conduct the investigation themselves. While in this case the investigator was a lawyer, he had been retained as an independent investigator as “part of the hospital’s response to [the] complaint, consistent with its own policy to address such complaints.” As such, the Arbitrator saw “no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer.”
This case serves as a useful reminder to employers on several points:
- The fact that an investigation is conducted by a lawyer does not mean that an employer’s communications with that lawyer are privileged.
- In appropriate circumstances, an employer may wish to conduct a privileged investigation. However, conducting a privileged investigation requires careful planning before the investigation begins. Legal advice should be sought regarding how such an investigation should be structured and those involved should be educated as to proper procedure so the privilege is not lost.
- E-mail really means “Evidence-mail”. When involved in an investigation, company personnel and especially HR professionals should operate under the assumption that their emails and notes during the investigation will likely be produced in a subsequent case. Similarly, a report prepared during an investigation will likely become the key document in a subsequent case. As such emails and reports should be drafted with appropriate care.
Heenan Blaikie offers training on conducting lawful workplace investigations. Our next session will be held on January 24, 2012. Please click here for more information.