Scott A. McCannHarris & Company LLP

INVESTIGATIONS TRAINING

What we’ll cover

Common Mistakes

Elements of a Proper Investigation

Who should Investigate

Elements of a fair process

Maintaining a Record

Burden and Onus of Proof

Relevance

Common Investigation Mistakes

Common Investigation Mistakes

Failing to plan Failing to conduct a thorough investigation

Ignoring complaints

Delaying investigations

Losing objectivity

Denial of fair process or lack of disclosure

Poor questioning techniques

Failing to reach a conclusion

Failing to create a written report

Elgert v. Home Hardware Stores Ltd.

Facts:

Allegation of “belly-bumping” female coworker

Investigator untrained, first investigation

Investigator long time friend of the complainant’s father

Respondent suspended, then dismissed

Elgert v. Home Hardware Stores

Findings:

No formal complaint;

Inexperienced investigator;

Interview conducted in accusatory fashion;

Particulars not disclosed until after employee suspended.

Investigator biased

Investigator pre-determined result

Result: 2 years salary, and $75,00 punitive damages

Elements of a Proper Investigation

Elements of a Proper Investigation

Timely

Thorough

Impartial

Fair

Purpose of an Investigation

Essential that employer keeps an open mind during investigation

Purpose of investigation not to prove allegations of misconduct

Purpose of an Investigation

Rather, purpose is to Obtain relevant facts

Evaluate facts from unbiased and objective perspective

Determine what happened

Assess what, if any, discipline is warranted based on facts

Sustain the decision

An investigation should . . .

Provide a fair process

Obtain all relevant information

Make findings of fact

Make a sustainable decision based on the facts

When is an investigation necessary?

Is an Investigation Necessary?

First, determine if an investigation is necessary

What is the nature of the alleged misconduct?

If the allegations were true, does it give rise to a disciplinary consequence?

The more serious the allegation, the more comprehensive the investigation needs to be

When to Conduct an Investigation?

Directly observe misconduct

Complaint from employee

Complaint from public or agency

Uncover through chance or random audit

Need to assess whether complaint is credible

Who should investigate?

The Investigation

Who should investigate?

An impartial investigator: No interest in the outcome

Perceived as fair

Not a witness

The Investigation

Ask yourself:

Can I be impartial?

Will I be perceived to be impartial?

Factors contributing to an apprehension of bias . . .

Financial or other interest in outcome

Relationship with persons involved in dispute

Prior involvement in subject matter

Outside knowledge of subject matter

Comment or conduct demonstrating matter prejudged

The Investigation

Can you be an impartial investigator?

Look at: The nature of the particular complaint

Who the complainant is

Who the respondent is

Who the witnesses are likely to be

The Investigation

Policies may include an opportunity for a complainant or a respondent to object to a particular investigator if there is: Clear conflict of interest

Bias or reasonable apprehension of bias

Where an objection is made: Investigator will consider whether to recuse

When to Consider an External Investigator

No suitable impartial person available

Management or senior employee involved

Subject matter highly contentious, serious (i.e.. criminal), emotional, or complex

Where employer’s conduct may be an issue

High demands on your time and/or high likelihood of legal challenge

Planning the Investigation

Decision -making

Internal/External/Impartial?

Who will investigate?

Nature of misconduct? Collective Agreement provisions?Policies? Professional misconduct?

What will be investigated?

What will the process be?

What evidence to gather?

The Investigation

Review

Details of the complaint

Relevant policies

Who to interviewDetermine

Existing documentation

The Investigation

Secure

Any physical evidence

Electronic devices (if relevant)

Video surveillance (if relevant)

The Investigation

DevelopList of essential questions for each interviewee

What facts you haveDetermine

Investigation plan

The Investigation

Interview Order

May be set out in the policy

Complainant

Respondent, except in

exceptional circumstances

Witnesses

The Investigation

Who to interview:

Anyone who might have relevant information on the alleged incidents of the misconduct

Who not to interview:

Those who do not have direct knowledge of relevant information

Elements of a Fair Investigation

Elements of a Fair Investigation

Impartial

Procedurally fair

Thorough

Objective assessment of the evidence

Timely

Procedural Fairness

Absence of Bias

Notice of the Investigation

Notice of the Allegations

A meaningful opportunity to respond

.

Right to respond

A meaningful opportunity to respond to the allegations

- before any decision is made;

- reasonable time to prepare;

- consider right to have representation present

Providing Particulars – how much is enough?

Failure to provide notice of specific allegations compromises fairness

Disclose all: Allegations or evidence that may give rise to an

adverse finding for the Respondent;

Information or evidence that contradicts the information or evidence provided by the respondent

Consider safety issues

Timing of Investigation

Obligation to conduct investigation and impose discipline within a reasonable time

Risk claim of condonation, estoppel or lack of fairness

When Should Notice of Investigation be provided?

Extent of obligation to give notice in Collective Agreement

Premature notice may prejudice investigation (i.e. theft, sexual relationship)

When does obligation arise (i.e. hearsay complaints)

Additional notice if new allegations arise

Maintaining a Record

Maintaining a Record

Keep chronological record of investigation: Dates and times of interviews

Witness statements

A log of telephone calls

Copies of all documents

Careful notes

Maintaining a record

Investigation file should be kept confidential;

Maintain physical and electronic security;

Nevertheless, files may be: subject to disclosure under privacy legislation

subject to compelled production in legal proceedings

Written Statements

Request written complaint or record to frame scope of allegations;

Confirm terms of reference in writing;

In appropriate cases: Value of Written, Signed Witness Statements;

Provision of Statement of Written Particulars;

Interview Notes

Record: date, time, locating and duration of interview

who was present

questions and answers

objections, or refusals to respond

Items for follow up

documentary evidence

Interview Recordings

Provides accurate record of interview questions and answers

Maintains record of demeanor, tone, and body language

May be subject to disclosure requests

Seek witness’ consent to address privacy issues

Burden and Standard of Proof

Standard of Proof

Balance of probabilities (more probable than not that it occurred)

Only one standard of proof in workplace investigations

Where evidence is circumstantial, must consider and determine if there are any alternative explanations for incident other than the employee committed the misconduct

Burden of Proof

Refers to which person or party has the responsibility or obligation to prove a fact or issue

Generally, the burden to prove misconduct or culpable conduct falls to the accuser or the party seeking to rely upon it

In legal proceedings, the burden will always be on the employer to prove that misconduct occurred

Burden vs. Standard

In criminal cases, the burden of proof falls to the Crown, and the standard of proof is “beyond a reasonable doubt

In a wrongful dismissal case, the burden of proof falls to the employer to establish the misconduct, and the standard of proof is the “balance of probabilities

Investigations

In investigations, there typically is no clear burden of proof on the parties

One of the goals of the investigation is to determine, on behalf of the employer, whether the burden of proof can be met such that a disciplinary response is justified

Investigator vs. Judge

The investigator actively uncovers evidence, then weighs and considers it

Whereas, a judge weighs and considers evidence that has been identified and presented by the parties

In some ways, the investigator plays the role of prosecutor, defence and jury in a single investigation

Determining Relevance of Evidence

Relevance

A matter of common sense or experience

Existence of a nexus or connection between two facts

Information from which we can infer the likelihood that an event or activity occurred

Types of Evidence

Most Reliable Forms of Evidence

Oral Evidence

Documentary Evidence

Direct observation

Video recordings

Audio recordings

Proceed cautiously . . .

Character Evidence Evidence that relates not to the events in issue, but

to a person’s character or propensity to commit certain acts

Similar Fact Evidence Evidence that relates not to the events in issue, but

to show that the individual has engaged in similar types of conduct in the past

Con’t

Hearsay Statements Statements made by persons outside of the

investigation relied upon to prove the truth of their contents.

“Jason Uppity told me that Mr. Deek threatened him”.

“Ms. Lovekind told me that Jason looked upset in the office”.

Group Exercise

The ComplaintYesterday, my son, Jason Uppity, told me that he had had an incident with Mr. Deek, the supervisor of the after school program. Jason told me that he and his friends were playing and Mr. Deek took their ball. I understand that Jason knocked a ball out of Mr. Deek’s hands. My son was not being aggressive, rather, he says this was simply in the spirit of play.

In any event, Mr. Deek then followed him across the room and threatened him. Jason told me that Mr. Deek was very close to him when he spoke, and that he felt frightened and was concerned that Mr. Deek might hit him. I understand that Mr. Deek said something like, “if you touch me again, I will break your f_____ neck”.

Jason was told by Mr. Deek to report to the office. Jason went to the office and waited there for over an hour. When Mr. Deek had not come, Jason called me and I picked him up. He was frightened and still visibly upset by the incident.

This incident demonstrates an unacceptable attitude toward our children, and I would like to request that you immediately advise me of what steps you plan to take. As you may know, my husband is a lawyer, and if we are not satisfied with the steps that the Band takes in response to this complaint, we fully intend to take legal action.

Develop your investigation plan

It should address: Process from receipt of complaint?

Who receives notice?

Who will investigate?

Who will be interviewed?

Evidence that should be gathered

Timeline

Any other issues?

Report Back

Initial Steps

Who do you contact first

Notices

Evaluate safety concerns

Appoint investigator – internal / external

Relevant Evidence

Questions?

Scott A. McCannHarris & Company LLP

INVESTIGATIONS TRAINING