Kenda’s Blog

After reading a recent newspaper article, I realized that despite what some lawyers and pundits think they know, they really know very little about workplace investigations, specifically the purpose that such investigations serve and how they must be conducted.

Purpose of a workplace investigation

Workplace investigations are legislatively mandated by the Occupational Health & Safety Act for instances or complaints of workplace violence and harassment. Additionally, they are required if mandated in an organization’s policy. An organization cannot resolve workplace conflict or engage in workplace restoration, if the organization does not have the facts of what transpired to cause the conflict in the first instance. Discrimination based on the protected grounds of race, sex, gender, and disability (to name a few) will continue to be perpetrated and perpetuated without workplace investigations. The purpose of a workplace investigation is to determine if there has been any wrongdoing engaged in and, if so, to name it and prevent it from reoccurrence. Workplace investigations are not witch hunts to root out so called “rotten apples” and for anyone to assert that they are only or primarily conducted without procedural fairness or neutrality by the investigator displays a disappointing lack of understanding of the why and how such investigations are conducted.

While they may be time-consuming and tedious, there is no substitute for or short cut to a properly conducted workplace investigation.          

The following represents a thumb nail sketch of the attributes of legally defensible workplace investigations[1]:

Mandate – The investigation mandate is clear; there is a requirement to investigate a complaint by person X against person Y and arrive at a fact finding and assess the findings against the obligations or prohibitions found in the organization’s policies to determine whether the policies have been breached. In over ten years of conducting workplace investigations, I have never been asked or instructed to arrive at a particular finding. If such a request or demand were ever made, I would not accept the retainer.

Notice – Notice is given to a respondent that they are named in a workplace investigation arising from a complaint by person X (the complainant) that an issue(s) or concern(s) has been brought forward. That notice also advises that the respondent will be provided with a summary of allegations after meeting with the complainant and they have the right to a support person or union representative to attend the interview with them. If the respondent wishes to have a lawyer attend the interview with them, I am happy to have the lawyer come along.

Follow-up to the Notice – The second point of contact with a respondent is to provide them with a summary of allegations that details the date, location and specifics of the alleged wrongdoing. The allegations contain no inflammatory language and provide sufficient specifics to allow the respondent to prepare a fulsome response to the allegations. This second point of contact is also when a convenient date for the respondent and their representative to attend the interview is scheduled.

Respondent’s Interview – At the respondent’s interview, the investigator will receive all information, physical evidence, and witness names that the respondent brings forward. It is not the workplace investigator’s job to gather evidence to exculpate the respondent. If there is exculpatory evidence, it is up to the respondent to proffer it at which point it will be assessed along with the other evidence.

Fact Finding – It is the investigator’s job to receive all the information and evidence from the parties to the investigation which evidence is then assessed and weighed to make findings of fact on the legal standard of a balance of probabilities.

Credibility Assessment – Credibility assessments are complicated. Workplace investigators must have a handle on the elements that make up credibility and how to objectively assess credibility. In my experience, the greatest jeopardy to a legally defensible investigation is the inability to articulate how and why one person is more credible than the other. If a credibility assessment forms the basis of the fact findings and it does not hold up to scrutiny, then the whole investigation may be jeopardized.

In short, workplace investigations are necessary in today’s labour and employment organizational landscape. Their existence enables employees to bring forth their concerns while respondents can be assured of a well-balanced and fair process that targets wrongdoing only where it exists. Arising from workplace investigations is often systemic improvement within an organization in the form of better and more robust policies and internal processes that support workplace wellness.

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[1] This list provides the skeleton of the most important workplace investigation attributes, otherwise this blog would turn into a 400-page book.

Although I have been writing about workplace investigations for years now, I thought that it would be a good time to revisit some basic “to dos” for complainants and respondents.

It is always a good idea for complainants to come to their interviews with all of the specifics of their complaints. That means that if there are any documents, e-mails, texts, letters, memos, photos, or day timer entries that are relevant to the investigation, it is wise to bring those along. This accomplishes a few things:

• It may help to focus the complainant on the matters and/or timeline to be discussed;
• It may help to direct the questioning by the investigator; and
• It helps in the timely continuation of the investigation.

The interview is a two-way conversation wherein the investigator receives information and based on that information asks probing and clarifying questions. It is the investigator’s job to ask questions about what she is hearing because, at the end of the day, the investigator will be called upon to weigh the evidence to make findings of fact on a balance of probabilities. To be sure, the investigator’s questions are not telegraphing disbelief or “taking sides”. The questions reflect the requirement to test and challenge what is said so that any gaps are identified and opportunities for filling in the gaps are explored so as to ensure that the investigator understands the complainant’s fulsome narrative. These questions for that reason are sometimes difficult. Complainants ought to keep in mind that the investigator’s task is to find a clear path to the facts.

It is important to understand that the investigator is not the complainant’s advocate but is a neutral fact finder and, potentially, the decision maker. As such, while it is logical that the complainant wants the investigator to believe them, it is wise to resist the temptation to ask if the investigator believes their version of events or whether their version of the events proves that the respondent was wrong or erred in some way. Invariably, the response the complainant is seeking will not come in that moment, but instead will be discovered in the final report. Such is the challenging task of maintaining neutrality.

Respondents ought to know that the investigator has not made any decisions or come to any conclusions prior to meeting with them. While it may feel to respondents that they are being accused of some wrong doing upon receipt of the allegations or particulars, they should understand that those allegations are based on information provided by the complainant(s) and, in some instances, certain witnesses. In other words, it is untested information because the respondent has yet to provide their evidence and supporting documentation. All sound workplace investigation processes ensure that respondents are afforded every opportunity to present their information to the same extent that the complainants have given their evidence.

For respondents, it is also important to approach the interview by bringing along any information that may refute, negate, explain or justify the allegations. Keep in mind that the investigator has heard only one side of the complaint and the respondent is entitled to and will receive the same opportunities to present all of their evidence such that the investigator leaves the interview having heard both sides. The respondent should also be aware that if they have not brought all of the information that they may wish to reference, they are able to furnish such information subsequent to the interview either by e-mail or at another face to face interview.

Respondents will be asked questions based on the information already provided. Clarifying questions are common. Questions such as: “What does that mean?” and “What did you mean?” are meant to elicit explanatory information and are not challenges to the integrity of the respondent. Just as it is important for the investigator to understand the narrative of the complainant, it is equally important for the investigator to understand the explanations that the respondent offers; denials, in whole or in part and any admissions, in whole or in part.

Take aways:

Investigations are difficult for everyone involved and often more difficult for the complainant and respondent. Keeping a few of these tips in mind can not only prepare each party for their interview but may also help to keep their nerves in check throughout the sometimes long investigation process.