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Originally Posted On: https://sdlawtimmins.com/lying-to-the-investigator-results-in-an-employee-facing-harsher-discipline/

Lying to the investigator results in an employee facing harsher discipline

When misconduct occurs, you should typically investigate the incident. Investigations are often necessary in cases of serious misconduct, such as alleged workplace violence. In cases where there are few or no witnesses to the misconduct, the investigator must consider factors such as the reliability of each witness. This can be a complex analysis. Therefore, it is often best to get an external investigator to do such an investigation.

During an investigation, employees are expected to be honest and forthright. If an employee fails to be honest, the employer may impose progressive discipline, up to and including termination. In certain cases, an employee may face more severe discipline for being dishonest to the investigator than what the investigator was retained to investigate. That was the case in the Crown Packaging v Unifor, Local 433 (2024 CanLII 42123), a decision from earlier this year.

Crown Packaging v Unifor, Local 433 (2024 CanLII 42123)

In this case, Dennis Cunningham worked as a knife operator for Crown Packaging, which operates a cardboard container manufacturing plant. Mr. Cunninghan had received previous discipline, that exceeded the two-year sunset clause in the collective agreement. On September 8th, Mr. Cunningham was upset by how an overtime shift was handled on September 3rd and got into a dispute with his supervisor. A few hours later, Mr. Cunningham was walking down the employee walkway, holding his cell phone to activate an app which would log him out at the exit. Mr. Cunningham walked by a colleague, who was in part responsible for how the incident on September 3rd was handled and bumped into that colleague hard. Mr. Cunningham did not turn around to see if his colleague was okay or offer an apology. Once Crown Packaging became aware of the incident, it began an investigation. It determined that this was an intentional assault, and that Mr. Cunningham was at fault for being dishonest during the investigation. The executives decided to terminate Mr. Cunningham, which the union grieved.

The arbitrator found that Mr. Cunningham had indeed shoulder-checked a colleague in a way that hurt his colleague. The arbitrator found Mr. Cunningham’s claim that the force was minimal was uncredible. However, the arbitrator found that the contact was unintentional. Since the shoulder check was accidental, there were no grounds to discipline, even though Mr. Cunningham was rude for not stopping and checking on his colleague. However, the adjudicator found that Mr. Cunningham was dishonest and not forthcoming in several ways during the investigation. The arbitrator found that the dishonesty about the force of the contact in particular was central to the investigation and therefore warranted discipline. The arbitrator found that the employer could not rely on the previous cases of discipline, voided by the collective agreement’s sunset clause as part of progressive discipline. As such, the arbitrator imposed a six-month suspension instead of a dismissal and reinstated Mr. Cunningham to his previous position.

Takeaways from Crown Packaging v Unifor, Local 433 (2024 CanLII 42123)

This case shows that employees can face discipline for being dishonest during an investigation, even if the investigation finds that the conduct that they are being investigated for is not worthy of discipline. That is why many employers will request that employees be honest and forthright at the start of any investigation.

This case also shows the risk that comes with having a sunset clause. Though in this case the sunset clause was created as part of the collective agreement, we have seen employers add a sunset clause to their employment contracts or employment policies. Had there been no sunset clause, the employer would have likely been justified in terminating Mr. Cunningham for cause because of progressive discipline. Because of the sunset clause, the employer now must reintegrate an employee that they do not trust.

How Suzanne Desrosiers Professional Corporation can help

At Suzanne Desrosiers Professional Corporation we have investigators who have experience in dealing with cases that hinge on the question of credibility. Therefore, if you have an incident involving a matter that could warrant serious misconduct if the allegation is founded, we could act as your third-party investigator. To learn more about our employment investigation services, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.