Every seasoned human resources professional is aware that
"investigation is the new arbitration". When addressing
issues of all but the most serious and blatant misconduct,
employers are now routinely counselled that if they shoot first and
ask questions later, they do so at their peril.
In 2017, we witnessed relentless waves of well-publicized
scandals, amplified by social media and the #MeToo movement. Some
media coverage may have contributed to a popular misconception that
investigating misconduct, and sexual impropriety in the workplace
in particular, is a new thing. But glimmers of a new emphasis on
due process in the workplace could be seen in Canadian law as long
as 15 years ago. In McKinley v. BC Tel,
[2001] 2 S.C.R. 161, the Supreme Court of Canada began a
conversation in the law of the workplace about fairness and
proportionality. The Court recommended that employers develop
a nuanced understanding of the facts prior to taking serious steps
to end
