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Published on April 23, 2014

Author: stlawyers



Why Conduct an Investigation?

• Discriminatory harassment
• Workplace harassment
• Workplace violence (including threats)
• Other misconduct (e.g., theft)
• Other interpersonal problems

CONDUCTING A WORKPLACE INVESTIGATIO Chuck Tahirali, Senior HR Consultant (416) 216-5901

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 violence and harassment policies/programs • My be penalized specifically for failure to investigate • Failure to investigate may undermine confidence in employer 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, everyone the subject of investigation wishes you to speak to and anyone else with relevant knowledge • Provide subject of investigation with full and fair opportunity 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 you not to proceed or if complainant does not cooperate • Complaint must be in writing (ideally, yes, but not necessary 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 the expected or inevitable outcome

To Suspend or Not? • Fact of investigation may upset complainant as much as experience underlying complaint • Fact of investigation may upset alleged perpetrator as much as fact of complaint • Interviews may be tainted by efforts of complainant(s) and/or alleged perpetrator(s) to influence what they say • Depending on work and work relationships, may not be practical to limit interactions between parties

Reasons for Suspension • To remove alleged victim (e.g., of harassment) from workplace to avoid further distress and/or interference with investigation. • Depending on circumstances, failure to do so could precipitate 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 could lead 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 to allegations of bias or discriminatory treatment • Limited or more difficult access to key individuals during course of investigation • May pose additional difficulties (e.g., home- or work-related) for those suspended

Why Not Unpaid Suspension? • Suspension without pay = traditional disciplinary penalty. • lleged perpetrator “innocent until proven guilty.” • Alleged victim who complains in good faith should not 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 may be a ‘constructive dismissal’ • For unionized employee, unpaid suspensions must be for ‘cause’

Supreme Court of Canada: • Employer justified in suspending an employee for administrative reasons, but following criteria must be met: - Decision to suspend must be based on protection of legitimate business interests; - Employer must act fairly and in good faith; - Suspension must be for a relatively short period of time or be of a fixed duration; and - Other than in exceptional circumstances, the suspension must be with pay.

Suspending Union Employee with Pay • Arbitral case law mixed on question of whether an employer may impose paid non-disciplinary or administrative suspension pending outcome of investigation. • Determination of whether a paid suspension is or is not disciplinary in nature is a finding of fact, to be made 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, to avoid 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 ensures confidentiality - off-site, if necessary • Allow sufficient time for each interview and for time between interviews whenever possible • Limit number of interviews conducted each day - you won’t be able to adhere to an overly ambitious schedule

Conducting the Interview • Ideally use 2 interviewers - easier for taking notes and better for analyzing information and reaching conclusions • Consider gender and work relationships in choosing investigators/interviewers • Can record interview but has disadvantages

Conducting the Interview • Both interviewers should take extensive notes • Onus on one investigator ask question; other to 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 an information-gathering meeting - That the individual is required to keep everything discussed strictly confidential - Explain limits of confidentiality - That they are protected against suffering any repercussions 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 they remember something further they wish to add - That you may be back in touch with more questions and if possible to make arrangements for private communications without need to meet - Remind re: confidentiality - do not discuss interview with anyone

Written Statements • Inform each interviewee that you may prepare a written 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) are sufficient • Statements useful depending on nature of issues under investigation

Conducting the Interview • Ask a mix of pre-prepared questions as well as questions which arise based on what you hear • Repeat questions and/or ask similar questions from different 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 to respond to the allegations • This usually means disclosing names of complaints and witnesses • Typically second or last scheduled interview (of first round)

After the Interview • Type up notes as soon as possible • Make list of follow-up questions after reading notes • Interviewers/investigators should exchange and read each other’s notes • Be sure to follow up with second (or more) interviews as needed

After the Interview • Interview anyone whom the alleged perpetrator wishes you to interview • Interview anyone mentioned in any interview if it seems 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 credibility as 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 inferences from: - Silence - Repeated “no’s” - “I can’t remember” when it would be reasonable to 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 disciplinary warnings, especially if written - Video surveillance • Common sense/logic

Assessing the Evidence • Taking into account the preponderance of information gathered, which version of events is most credible? • It is okay if there is insufficient information on which to determine whether the complaint is substantiated but ensure that parties understand this is different than “innocent” or “guilty”

Communications • A written report should be prepared. This may not be shared with the complainant/alleged perpetrator. • However, a letter summarizing the process, outcome and conclusions (or lack thereof) should be provided to the complainant and to the alleged perpetrator. • These letters should be legally reviewed prior to issuance.

Outcome and Remedial Action • As appropriate, the letters should set out what steps and actions the organization will be taking in response to the outcome of the investigation and the conclusions reached. • Develop an action plan and follow through on it. • Don’t immediately hold the “Dick and Jane sexual harassment seminar” (where Dick and Jane were primary parties in investigation).

Outcome and Remedial Action • Expect and manage ongoing tensions and stresses in the workplace. Provide support/access to EAP as needed. • All investigation materials should be kept away from individual personnel/HR files and kept in a secure location where they can be accessed only by senior managers/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

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