CONDUCTING A WORKPLACE INVESTIGATION

Chuck Tahirali, Senior HR Consultant(416) 216-5901

chuck@stlawyers.ca

Why Conduct an Investigation?

• Discriminatory harassment

• Workplace harassment

• Workplace violence (including threats)

• Other misconduct (e.g., theft)

• Other interpersonal problems

Why Conduct an Investigation?

• Part of an effective defence against legal claims

• Legally required component of workplace violenceand harassment policies/programs

• My be penalized specifically for failure to investigate

• Failure to investigate may undermine confidence inemployer and/or lead to poisoned work

environment

Internal v. External Investigators

• Proportionate to:

- Seriousness or complexity of allegations/situation

- Need for objectivity

- Identity of those alleged to be involved

- Potential for legal action

- Own lawyer or other lawyer/investigator?

Basic Characteristics of a Good Investigation

• Commences in a timely manner

• Appropriate steps taken pending outcome(administrative suspensions?)

• Interview everyone referred to in complaint, everyonethe subject of investigation wishes you to speak to and

anyone else with relevant knowledge• Provide subject of investigation with full and fairopportunity to respond

Basic Characteristics of a Good Investigation

• Properly documented

• Make findings based on credibility

• Proper communication with all parties concerned

• Best efforts to maintain confidentiality

• Appropriate remedial action

Myths and Misconceptions

• Can’t proceed if complainant explicitly instructs younot to proceed or if complainant does not cooperate

• Complaint must be in writing (ideally, yes, but notnecessary in informal investigation)

• Investigation must be conducted quickly

• Keep names of complainants secret

Myths and Misconceptions

• Confidentiality will be maintained

• “Where there’s smoke, there’s fire”

• One and done

• Good investigator = fictional detective

• Termination of the alleged perpetrator is theexpected or inevitable outcome

To Suspend or Not?

• Fact of investigation may upset complainant as much asexperience underlying complaint

• Fact of investigation may upset alleged perpetrator as muchas fact of complaint

• Interviews may be tainted by efforts of complainant(s) and/oralleged perpetrator(s) to influence what they say

• Depending on work and work relationships, may not bepractical to limit interactions between parties

Reasons for Suspension

• To remove alleged victim (e.g., of harassment) fromworkplace to avoid further distress and/or

interference with investigation.

• Depending on circumstances, failure to do so couldprecipitate medical absence from work and/or

damages for mental distress

• May attempt to influence other interviewees.

Reasons for Suspension

• To remove alleged perpetrator (e.g., of harassment)from workplace to avoid further interaction with

alleged victim and/or interference with investigation.

• Depending on circumstances, failure to do so couldlead to additional damages if victim subjected to

further harassment

• May attempt to influence other interviewees.

Arguments Against Suspension

• Suspensions with pay may be expensive

• Even if paid, suspension may be perceived as a penalty

• If everyone allegedly involved is not suspended, could lead toallegations of bias or discriminatory treatment

• Limited or more difficult access to key individuals duringcourse of investigation

• May pose additional difficulties (e.g., home- or work-related)for those suspended

Why Not Unpaid Suspension?

• Suspension without pay = traditional disciplinarypenalty.

• lleged perpetrator “innocent until proven guilty.”

• Alleged victim who complains in good faith shouldnot be subjected to penalty.

Why Not Unpaid Suspension?

• Becomes onerous unless for short period of time

• Blurs distinction between disciplinary and non-disciplinary processes

• For non-union employees, unpaid suspension maybe a ‘constructive dismissal’

• For unionized employee, unpaid suspensions mustbe for ‘cause’

Supreme Court of Canada:

• Employer justified in suspending an employee foradministrative reasons, but following criteria must be met:

- Decision to suspend must be based on protection oflegitimate business interests;

- Employer must act fairly and in good faith;

- Suspension must be for a relatively short period of time orbe of a fixed duration; and

- Other than in exceptional circumstances, the suspensionmust be with pay.

Suspending Union Employee with Pay

• Arbitral case law mixed on question of whether anemployer may impose paid non-disciplinary or

administrative suspension pending outcome ofinvestigation.

• Determination of whether a paid suspension is or isnot disciplinary in nature is a finding of fact, to bemade in each case, dependent upon the individual

circumstances.

Suspending Union Employee with Pay

• Even where paid suspension is non-disciplinary,union representation should be provided if

otherwise required by collective agreement

• Try to be clear that suspension is non-disciplinary, toavoid later claim of “double discipline”

Administrative/Paid Suspensions

• Suspend pending outcome of investigation

• Try to avoid other work-related consequences (e.g.,missing training opportunities)

• Don’t unilaterally assign as vacation time

Conducting the Investigation

• Arrange for an interview room which ensuresconfidentiality - off-site, if necessary

• Allow sufficient time for each interview and for timebetween interviews whenever possible

• Limit number of interviews conducted each day -you won’t be able to adhere to an overly ambitiousschedule

Conducting the Interview

• Ideally use 2 interviewers - easier for takingnotes and better for analyzing information

and reaching conclusions

• Consider gender and work relationships inchoosing investigators/interviewers

• Can record interview but has disadvantages

Conducting the Interview

• Both interviewers should take extensive notes

• Onus on one investigator ask question; otherto take notes; switch roles

• Make careful notes re: dates, times, places,witnesses

Conducting the Interview

• Inform each person at start of interview:

- This is not a decision-making meeting - it is aninformation-gathering meeting

- That the individual is required to keep everythingdiscussed strictly confidential

- Explain limits of confidentiality

- That they are protected against suffering anyrepercussions for participating in process

Conducting the Interview

• Inform each person at the end of the interview:

- How they can get in touch with you if theyremember something further they wish to add

- That you may be back in touch with morequestions and if possible to make arrangements

for private communications without need to meet

- Remind re: confidentiality - do not discussinterview with anyone

Written Statements

• Inform each interviewee that you may prepare awritten statement containing some or all of what

they have said for their review and signature

• Written statements are not always necessary - oft-times your written notes (and/or recordings) aresufficient

• Statements useful depending on nature of issuesunder investigation

Conducting the Interview

• Ask a mix of pre-prepared questions as well asquestions which arise based on what you hear

• Repeat questions and/or ask similar questions fromdifferent angles

• Listen carefully for discrepancies

• Pay attention to demeanour and body language

• Ask for drawings; visit work locations at issue

The Alleged Perpetrator

• Has right to be fully informed of the allegations

• Has right to be given full and fair opportunity torespond to the allegations

• This usually means disclosing names of complaintsand witnesses

• Typically second or last scheduled interview (of firstround)

After the Interview

• Type up notes as soon as possible

• Make list of follow-up questions after reading notes

• Interviewers/investigators should exchange and readeach other’s notes

• Be sure to follow up with second (or more)interviews as needed

After the Interview

• Interview anyone whom the alleged perpetratorwishes you to interview

• Interview anyone mentioned in any interview if itseems reasonable to suppose that such persons have

relevant information

• Identify loose ends and follow-up questions

• “Run to Ground”

Assessing the Evidence

• Try to sort out and identify what is objective/factual

• Don’t be afraid to make findings based on credibilityas long as you consider all information provided

• Standard 1: Balance of Probabilities

• Standard 2: Clear and cogent evidence

• Arguably both part of same standard

Assessing the Evidence

• May be appropriate to draw negative inferencesfrom:

- Silence

- Repeated “no’s”

- “I can’t remember” when it would be reasonableto remember

Assessing the Evidence

• Don’t limit yourself to interview notes

- Time cards/sheets/attendance records

- Log books, meeting minutes

- Personnel actions, e.g., previous disciplinarywarnings, especially if written

- Video surveillance

• Common sense/logic

Assessing the Evidence

• Taking into account the preponderance ofinformation gathered, which version of events is

most credible?

• It is okay if there is insufficient information on whichto determine whether the complaint is substantiated

but ensure that parties understand this is differentthan “innocent” or “guilty”

Communications

• A written report should be prepared. This may notbe shared with the complainant/alleged perpetrator.

• However, a letter summarizing the process, outcomeand conclusions (or lack thereof) should be provided

to the complainant and to the alleged perpetrator.

• These letters should be legally reviewed prior toissuance.

Outcome and Remedial Action

• As appropriate, the letters should set out what stepsand actions the organization will be taking in

response to the outcome of the investigation andthe conclusions reached.

• Develop an action plan and follow through on it.

• Don’t immediately hold the “Dick and Jane sexualharassment seminar” (where Dick and Jane were

primary parties in investigation).

Outcome and Remedial Action

• Expect and manage ongoing tensions and stresses inthe workplace. Provide support/access to EAP as

needed.

• All investigation materials should be kept away fromindividual personnel/HR files and kept in a securelocation where they can be accessed only by seniormanagers/those who need to know.

• Retain for as long as possible; at least 7 - 10 years.

WORKPLACE INVESTIGATIONS

Questions?Chuck Tahirali, Senior HR Consultant

(416) 216-5901

chuck@stlawyers.ca