Essential Steps to Conduct a Good Workplace Investigation

 

Harassment and human rights complaints from employees are some of the most challenging human resources scenarios that a manager needs to deal with.  Since courts and tribunals have consistently frowned on management inaction or overzealousness in dealing with these complaints, managers need to be sure to both do the right thing and do things right – in other words, the right response must be made and in the right way.

Regardless of whether management chooses to investigate the harassment/human rights complaint internally or to hire an external investigator, there are certain elements that are common to all investigations that are subsequently upheld as proper in a judicial setting.  With the aim of de-mystifying workplace investigations for managers, here is a brief synopsis of these elements:

1.  Appoint an independent and competent investigator

A workplace investigation into harassment and/or human rights violations is a very serious matter with its conclusions having the power to dramatically affect or even terminate careers.  For an investigator to be accepted as credible and trustworthy by the parties involved as well as judicial bodies, that investigator must be free from actual and perceived conflict of interest or bias.  Unless that is the case, the investigation would likely be considered worthless, no matter how much work and effort was put in.

The best way to ensure independence in investigations is to use an external investigator at all times.  An external investigator does not have pre-conceived notions on the personalities involved, nor will be at risk of being influenced by internal organizational politics.  There is therefore freedom to make findings as the facts dictate – which is the goal of a good investigation.  To further guarantee independence, external investigators should be paid by the fact that an investigation was completed, regardless of its conclusions.

Regardless of whether management chooses to appoint an internal or external investigator, ensuring that the investigator is capable of conducting and will actually conduct a proper, unbiased investigation is vital.  Failure to do so may significantly increase the employer’s liability if the matter becomes the subject of legal proceedings.  Therefore, it is strongly advisable that the investigator be a regulated professional with training and experience in workplace investigations.

2.  Have a good investigation plan, right from the beginning

Upon being notified that an investigation is required, a good investigator should immediately analyze the material already available in order to have a general plan on how the investigation should proceed.  While flexibility should always be maintained in every plan to accommodate surprises, in order to ensure that the investigation proceeds in a timely manner and is not distracted by tangential issues, the investigator needs to discern the general direction of the investigation right from the beginning.

Some information that the investigator should take into account at this stage are:

- The allegations made by the complainant that initiated the investigation;

- Applicable organizational policy;

- Organizational structure and reporting relationships;

- The physical environment and setup of the workplace;

- Potential witnesses, whether they are mentioned by the complainant or not;

- Other relevant background information.

In the investigation plan, it is a good idea for the investigator to summarize the complaint as a question to be answered, such as, “did the behaviour of John Smith towards Mary Jones constitute harassment as defined by applicable legislation and ABC Corporation’s Anti-Harassment Policy?”  This question is a valuable tool in keeping the investigation focused on its mandate regardless of its complexity, and ensures that the findings do in fact address what is being investigated.

An external investigator should complete this initial plan as part of the initial consultation with the client.  Ideally this initial consultation should be at no charge to the client, with the estimated cost and time to completion made available to the client at the end of that meeting.

Once the client agrees to the estimated cost of the investigation, the external investigator should discuss the arrangements for interviews, records access, and other investigative activity with the client.

Throughout the investigation, privacy of persons involved and confidentiality of information must be strictly maintained.

3.  Interview with the complainant(s)

A foundational Canadian legal principle is the concept that persons with grievances have the right to be heard; therefore, unless the complainant explicitly declines, the investigator must interview the complainant to obtain further details of the allegations.

Obtaining details of the allegations from the complainant is also a crucial step in determining whether harassment, human rights violations or other wrongdoing is actually being alleged.  If, after hearing from the complainant in detail, there is no apparent incidence of any being committed, the investigation can be concluded and the investigator can proceed directly to completing the report.

By allowing the complainant an opportunity to be heard in detail, regardless of the merits of the complaint, the rights of the complainant would be more likely to be seen as being respected, thus increasing the credibility of the investigation’s conclusions – even if the complaint is dismissed.

If the complainant has identified matters that require further investigation and response from others, the complainant should also be given the opportunity to provide a list of witnesses and potential investigative leads.

This interview, along with all others throughout the course of the investigation, should be conducted during paid working hours of the interviewee.  Employees on leave without pay should be appropriately compensated for their participation.

4.  Interview with the respondent(s)

If the complainant has indeed made allegations of harassment, human rights violations or other wrongdoing, the person who is alleged to have committed those acts, i.e. the respondent, is to be interviewed next so the investigator can hear the response to and the other side of the allegations.  Again, this is due to the right to be heard.  The respondent should be provided with a summary of the allegations made, and be cautioned that should the allegations be upheld by the investigation, the employer may impose disciplinary measures against the respondent.  Being the opportunity for the respondent to provide their perspective on the allegations, it is in the best interests of the respondent to participate in the interview with a neutral external investigator.

At the end of the interview, the respondent should also be given the opportunity to provide a list of witnesses and potential investigative leads.

5.  Interviews with witnesses

Potential witnesses may be identified by the investigator at the planning stage and during the investigation, by the complainant, as well as by the respondent.  The investigator should determine if every identified witness does indeed appear to have information relevant to the investigation.  Those who clearly do not have anything to offer do not need to be interviewed, but the reasons for exclusion should be recorded by the investigator.

During the investigation, information may be uncovered showing that a witness may also have committed harassment, human rights violations or other wrongdoing; the investigator should determine if these new allegations fit within the current scope of the investigation and report to the client.  A follow-up interview may be scheduled with this witness as respondent to these new allegations, or a new investigation may be commissioned, as appropriate to the circumstances.

6.  Follow-up interviews

Follow-up interviews should be conducted with the complainant and the respondent, to obtain their perspective on information uncovered during the investigation.  Follow-up interviews with witnesses may also be required to clarify details.

7.  Examination of records

The organization’s human resources records may contain important information related to the complaint, such as harassment/workplace respect training attendance records.  In cases where the respondent is found to have committed harassment, prior disciplinary records may be relevant in determining the appropriate disciplinary action.  On the other hand, since information contained in human resources records may be prejudicial to the complainant or respondent, ideally the investigator should examine records only after initial interviews have been completed.  This will ensure that the investigator’s findings are only based on first-hand information obtained during the investigation and do not reflect the opinions and judgements made following other incidents.

If there are significant discrepancies between corporate human resources records and information provided by the complainant or respondent, follow-up interviews may be required for clarification.

8.  Analysis and production of report

Once the investigator has gathered all foreseeable relevant information that is available, analysis leading to conclusions can be performed.  Based on the balance of probabilities, the investigator should assess the credibility of each party and witness, and determine what is more likely to have occurred.  On these findings of fact, the investigator should then determine whether what has happened constitute violations of applicable legislation and corporate policy.  If wrongdoing is found to have occurred, the investigator should make recommendations on the appropriate management response.  The report to management, i.e. the client, can then be prepared.

Investigation reports should contain the following information, with additions and deletions to this list made as appropriate to the specific circumstances at hand:

- Legal and policy basis of the investigation, as well as applicable professional standards;

- Description of the investigator’s engagement and background of the complaint;

- Statement of independence of the investigator;

- Summary of complainant’s allegations;

- Summary of respondent’s response to allegations;

- Listing of information gathered, including interviews held and documentation reviewed;

- If any witnesses or leads provided by the parties were not interviewed/pursued, an explanation why not;

- Assessment of credibility for each party and witness;

- Investigator’s findings of fact;

- Investigator’s determination of whether wrongdoing has occurred;

- Investigator’s recommendations to management;

- Other relevant information.

9.  Notifying the complainant(s) and respondent(s)

Once the investigation report has been delivered to management, the complainant and respondent should be informed that the investigation has concluded.  This can be done by the investigator or by management.

The goal of every proper workplace investigation is to find out the truth of the matter through listening to the perspectives of all sides.  To discuss how good investigations can be the best response to harassment, human rights or other employee complaints, please contact me today.

To find out more about me and my services, please click here to visit my home page.