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.