5 Key Steps for a Proper Workplace Investigation in Canada
May 19, 2017
Investigations are a vital – but difficult – part of workplace management. The value of a proper investigation can’t be overstated: it plays a pivotal role in the imposition of discipline (and any subsequent challenge to such discipline) and provides an important safeguard to employees’ right to procedural fairness. An employer that conducts an improper (or no) investigation leaves itself exposed to potential liability and other negative consequences, including a successful claim for punitive damages, human rights complaint(s), civil legal action or grievance. An effective and fair workplace investigation results in a solid conclusion based on which the employer can take decisive and appropriate action – and preclude negative consequences down the road.
Here are five key steps to conducting a proper workplace investigation.
1. Procedural Fairness
An employer is bound by principles of procedural fairness in imposing discipline, and this generally entails an obligation on the employer to investigate the circumstances before disciplining an employee. Generally, an employer should carry out a workplace investigation whenever there is or may be some form of employee misconduct or inappropriate workplace behaviour – like bullying or harassment – including when there’s a complaint under the applicable workplace harassment policy or a law (such as applicable occupational health and safety, human rights and/or employment standards laws). The employer’s broad objectives in such an investigation are the opportunity to get the facts straight before confronting the employee(s), give the employee an opportunity to present their version of events and/or explain their conduct, and ultimately verify whether discipline is warranted and if so, the surrounding circumstances (including mitigating or aggravating factors) to assist it determine the appropriate discipline. Every effective workplace investigation, regardless of its nature, must embrace four overarching principles:
Neutrality. Investigators must not have a personal stake in the outcome of the investigation or pre-judge the issue.
Fairness. Employers have a duty to conduct workplace investigations in a fair and impartial manner. “Fairness” depends on the circumstances of each investigation, but at a minimum, all parties involved must have the opportunity to provide all relevant information and to have the investigator consider it.
Thoroughness. Uncover all information necessary to make the proper decision and to ensure that conclusions are supported.
Timeliness. Act promptly to avoid further acts of wrongdoing and impose discipline in a timely manner or risk a successful challenge in a court or arbitration.
Implementing a systematic investigation framework helps ensure the overarching investigation principles are respected and the investigation is properly conducted.
Objective. Ensure both the organization and the investigator are clear about its objective from the outset. This guides the investigator’s work and reduces the likelihood the investigation will deteriorate into a fishing expedition and avoid wasted time and resources.
Scope. Determine the scope of the investigation early: limited to factual findings, extends to drawing conclusions and includes recommendations for employer action.
Timing. Over time, memories fade and documents are lost: start and complete the investigation as soon as possible, but strike a balance between a speedy investigation and a thorough one.
Investigator. Promptly decide whether an internal or an external investigator will conduct the investigation. A “staff” investigator can investigate simple and straightforward complaints and avoid incurring costs associated with retaining an external investigator. The employer can retain an external investigator where there’s no internal investigator or the scope or the nature of the investigation makes it appropriate, for example where the issues are complex, the allegations are serious, or there’s a concern with respect to an internal investigator’s neutrality.
3. Preliminary issues
The investigator and employer should address any preliminary issues before embarking on the investigation interviews.
Assessment. Assess the complaint by considering its nature, who’s involved, and what workplace policies come into play. The employer should also assess the interim employment status of both parties; if the complainant doesn’t feel safe in the workplace, consider transferring them to another area in the workplace or to granting a leave of absence; if the nature of the alleged misconduct causes concern for the safety of others, consider placing the respondent on a paid leave of absence during the investigation.
Employee Concerns. Often, one or more involved employees is reluctant to participate in an investigation. There are a host of concerns they might raise, but ultimately the employer has an obligation to investigate workplace misconduct – and generally the right to insist its employees co-operate, and to (reasonably) discipline an employee for refusing to cooperate (but give them an opportunity to comply first).
Disclosure. Individuals involved are entitled to differing degrees of disclosure before they are interviewed as part of the investigation:
- Respondent. The respondent is entitled to know that a complaint has been received in which they have been named, the complainant’s identity and sufficient detail to allow them to know generally what matters will be discussed in their interview.
- Witnesses. Witnesses are often the most curious about the investigation but have no rights respecting either privacy or disclosure during the investigation and no need to know the nature of the allegations before their interview.
Privacy. Courts (or arbitrators) evaluating an investigation attempt to balance the employees’ privacy interests against the employer’s legitimate business interests so both the employer and the investigator must be cognizant of any privacy rights and act accordingly. The parties have a right to privacy and confidentiality; the more sensitive the subject-matter, the more care an employer should take to protect these rights. But there are limits because it’s necessary to share certain information during the investigation for the process to be fair and thorough, such as the respondent’s right to know the particulars of the case made against them, particularly in a formal harassment investigation. The investigator and the employer must, however, handle the complaint and the investigation in a confidential manner and make every effort to avoid unnecessary, and perhaps inadvertent, disclosure, only sharing information about the facts of the investigation – particularly names of those involved and the subject matter – with those who need to know.
The interviews are often the most crucial stage of the investigation because the investigator typically obtains most of their information here, and has the opportunity to assess the witnesses’ credibility.
Preparing. Advance preparation is key to an interview that yields useful and credible evidence to aid in the investigation:
- Who. Decide who to interview. Initially, the interviewees might be limited to the complainant and the respondent; others the investigator must interview typically becomes apparent after the initial interviews with the complainant and respondent. The main factor determining who the investigator needs to interview is whether the person has information relevant to the objective of the investigation. There’s no requirement to interview everyone the parties put forward; the more witnesses the investigator interviews, the greater the likelihood of compromising confidentiality. Generally, the investigator should interview witnesses to the more significant events indicated in the complaint, not necessarily those with knowledge of more trivial incidents, but should interview any witnesses both the complainant and the respondent name.
- When. It’s common to interview the complainant first, followed by the witnesses the complainant names, then the respondent, followed by the witnesses the respondent suggests, and lastly any required follow-up interviews. But the investigator should remain flexible when deciding the order; the facts or concerns that witnesses might try to falsely corroborate each other’s stories might suggest a different order.
- What. Before the interview, prepare questions based on the understanding of the incident. Generally, the interview should start with “open-ended” questions (ones that don’t suggest an answer) to the interviewee to give them the opportunity to provide their own account of the incident and possibly provide new information of which the investigator may not be aware when preparing the questions. Therefore, it can be effective to use a combination of open-ended and closed-ended questions. Inevitably, the witness’s answers will lead to additional clarification questions. It’s important that the investigator seek very specific details with respect to times, dates, locations, individuals involved, and other witnesses.
Conducting. Conduct the interviews as soon as possible, while memories remain fresh.
- Team-up. Where possible, two people together should interview each witness to allow better note-taking and to give the employer two witnesses to testify about the interviews if there’s a subsequent hearing.
- Preliminary Matters. At the beginning of each interview, the investigator should: explain the employer has asked them to investigate a complaint or issue brought to the employer’s attention; explain they want to learn what, if any, relevant information the interviewee might have; advise they are looking for facts, not personal opinion; describe the nature of the complaint, providing only those details necessary to make the interview meaningful; advise the interviewee the investigation process is confidential and the interviewee shouldn’t discuss it or the interview with anyone; and remind the interviewee of the importance of providing honest and accurate responses.
- Note-taking. Record the date, time and the names of the interviewee and anyone else present at the interview. All interview notes might be admissible in any future legal proceeding related to the complaint, so make all notes and records on the assumption they will be disclosed in the future: they must be credible, comprehensive and comprehensible and avoid any comments or notes that could be construed as prejudging the issue. Get the handwritten notes typed as soon as possible and check the accuracy of the typed version.
- Interviews. The interview is intended to provide a clear understanding of what happened so the employer can determine what – if any – discipline is warranted, so obtain all relevant information from each party. Before concluding each investigation interview, review the draft interview questions and notes to determine whether they require any further information or clarification from the interviewee.
- Complainant. Obtain a clear understanding of the complainant’s view of what happened before, during and after the incident(s) and whether there were any witnesses and who.
- Respondent. Assure the respondent the employer is dealing with the complaint as confidentially as possible, and advise the respondent to maintain that confidentiality. If the complaint is regarding a breach of human rights legislation, caution the respondent (and every other witness) that human rights law prohibits any reprisal against the complainant. Disclose the complainant’s allegations and any material facts or evidence gathered during the investigation.
- Witnesses. Advise witnesses about their impartial role in an investigation and provide enough information so the witness can comment on the incidents they may have observed, while limiting information that would reveal names and identities of those involved, if at all possible. Once again, highlight the confidentiality of the investigation. While it is not necessary to share full particulars of the complaint with witnesses, it may be necessary and justifiable to share some information to determine whether the witness has relevant information.
- Take Stock. Assess the credibility of each witness during or immediately after the interview, noting divergences in the evidence and filling in any gaps to the greatest extent possible. When judging credibility, consider the witnesses’ demeanour during the interview, consistency with most of the other evidence and internally, whether the story is logical, is corroborated by other testimony and any possible motive to fabricate an allegation or evidence. This is when the investigator should determine whether they require any follow-up or additional interviews and schedule and conduct them accordingly.
5. Finalize the Investigation
Complete the investigation – conduct all necessary interviews and obtain all relevant documents – as soon as possible:
Factual Findings. The investigator’s primary role is to make findings of fact that lead to a conclusion. Often, the employer will draw the conclusion and/or decide the appropriate course of action based on the investigator’s findings of fact, though the investigator might do so if directed by the employer. Factual findings in an internal investigation are based on a “balance of probabilities” standard: based on all of the evidence is it “more likely than not” (greater than a 50% chance) the alleged fact actually happened? Considering factors like parties’ and witnesses’ demeanour and credibility, any corroboration, and the adequacy and consistency of the facts the parties and witnesses allege.
Outcomes. There are three typical outcomes of an investigation: substantiated (the preponderance of the evidence substantiates the conduct or the complainant’s allegation(s)), not substantiated (the preponderance of evidence supports the view that the conduct or complainant’s allegation(s) couldn’t have happened and/or is without a reasonable basis); and inconclusive (the conduct or allegation(s) may have happened but the preponderance of evidence fails to prove they occurred).
Report. It’s sometimes appropriate for the investigator to prepare a report. Regardless of its form and remembering it could become evidence in further legal proceedings, the report should present all the relevant information identified during the course of the investigation; analyze it; containing findings of fact, and, if the investigator is charged with making a determination, their conclusions. The employer is generally not obligated to providing a copy of the final report to the parties or to anyone else, and ideally circulate it only among the final decision-makers to protect confidentiality and the possibility that it’s privileged and not subject to disclosure in any legal proceeding.
Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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