Providing Dependable Investigative Services
Investigations are required in a number of workplace situations. Where allegations of harassment have been made, the Occupational Health and Safety Act requires that an investigation that is “appropriate in the circumstances” be conducted. While simple issues can sometimes be investigated internally, employers often prefer the objectivity and skill exhibited by external investigators.
Our experienced workplace investigators offer timely, efficient, cost-effective services, which may be restricted to fact-finding or which may include legal advice, depending on the employer’s needs.
The Workplace Investigation Process
- Choose your investigator wisely.
An organization should ensure that the investigator is, and is seen to be, neutral and unbiased. Avoid an investigator in a reporting or close working relationship with either party to the investigation. Choose an external investigator where the necessary skills and/or neutrality are not available internally.
- Comply with your internal rules.
Conduct the investigation in accordance with all applicable policies and collective agreements. These documents may provide for timelines, representatives or support persons, or written submissions.
- Ensure the confidentiality of the investigative process.
Explain to the complainant, respondent and any third party witnesses the importance of keeping the process confidential. This is often accomplished by way of a written confidentiality agreement. Consider incorporating repercussions for failure to protect the confidentiality of the investigative process.
- Avoid ambushing the respondent.
As tempting as it may be, keep the process fair and transparent. Advise the respondent in advance of his/her interview of the existence of the complaint, as well as a summary of the allegations. This provides the respondent with an opportunity to turn his/her mind to the issues, supporting documentation, witnesses, etc.
- Interview third party witnesses.
Once the complainant and respondent have been interviewed, consider whether there may be third parties with relevant information.
- Conduct follow up interviews if necessary.
If new and relevant information has been raised, follow up interviews obtain witnesses’ response to this new information.
- Document your assessment of credibility.
If your finding comes down to a credibility contest between witnesses, there should be clarity about why you accepted the evidence of one witness over the other.
- Ensure you have made findings on all relevant allegations.
Don’t leave any allegation unanswered it’s your job to make findings. As an investigator, you don’t have the luxury of saying “I’m not sure – it’s just ‘he said, she said'”.
- Draft a comprehensive report.
The report should touch on the policy and/or legislation that you are relying on, the scope of the investigation, the witnesses and documents you relied on, a summary of each allegation, what evidence you considered for each allegation and your finding on each allegation.
- Provide your reports.
The full report should only be provided to those who genuinely need to know in order to maintain confidentiality to the greatest extent possible. The complainant and respondent should receive a summary version containing only your findings, i.e. without the names of third party witnesses and their evidence. Consider whether there are any legislative requirements on what you need to report. For example, it may be necessary to advise the parties what, if any, disciplinary action is being taken as a result of the findings.
Employment & Labour Law Resources
We are fully committed to keeping our clients apprised of the ongoing changes to labour and employment legislation and case law. Visit our Labour & Employment blog for regularly updated posts to help you remain current on a range of topics related to labour and employment law.