1 September 2010

Counsel's Job is Not to Prove Guilt

Lawyers are no different than scientists, at least in one respect:  While they may enjoy personal theories, they must set those aside and consider alternate hypotheses in assessing any case.
 
Employers turn to counsel for advice on firing, but in their rush to dismiss suspected employees, often view that opinion as a formality. In an effort to curry favour, inexperienced counsel often rubber stamp perfunctory investigations rather than demand all the facts before making recommendations. Failure to do so never serves the client and often has legal consequences.
 
Canadian Pacific Railway recently learned that lesson:  Its auditors identified irregularities in expense reports filed by Paul Chapell, a 27-year employee. The matter was turned over for investigation to Barbara Mittleman, a lawyer and CPR's director of human resources.
 
Rather than carry out what I, and the court, view to be her job, to thoroughly examine the evidence in Chapell's favour, Mittleman accepted, and more important, sought, information to confirm guilt. On her recommendation, CPR fired Chapell for cause asserting he filed fraudulent expense reports. Chapell sued for wrongful dismissal.
 
Madame Justice Erb of the Alberta Court of Queen's Bench found Chapell was denied logistic and administrative support to properly process his expense claims, and lambasted Mittleman's investigation as an exercise in "case building" rather than "fact finding". Chapelle was awarded wrongful dismissal and bad faith damages.
 
In workplace investigations, I urge clients take the following steps:
 
Keep an open mind The investigators should be impartial. Any statements or behaviour that indicate prejudgment can destroy a case.
 
Avoid blind siding:  Be candid about all the accusations. In the CPR case, Chapell was not advised about all the allegations levelled, leaving him stymied in his ability to defend himself. An employee must be provided genuine opportunity to present a defence to all allegations. No benefit is gained by launching a surprise attack.
 
Interview fairly:  The questioning should not convey any inference the employer has made up its mind. Being dismissive or sneering at an employee's statement does just that. The employee must feel he is receiving a fair hearing.
 
No case-building:  The employee may have a reasonable explanation. Be open to consider and investigate his or her defence. Interview exculpatory witnesses whose names are cited by the employee.
 
Consider the whole picture:  An investigation must look at all the facts and any mitigating circumstance. Otherwise, a court is likely to condemn the investigation as lacking in objectivity.
 
Record complete statements:  Interviews should be taped and transcripts produced. An investigator's abbreviated notes can be the downfall of an employer's case.
 
Maintain a record:  All of the steps taken in an investigation including the time, duration, and sequence of questioning and review of documents should be recorded and preserved.
 
Howard Levitt.