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Conducting workplace investigations

Many employers still fail to properly investigate alleged misconduct

By Brian Kreissl

One thing that frequently lands employers in hot water is their failure to conduct proper workplace investigations. Often the problem isn't that the employer hasn't conducted any investigation at all. Rather, it's simply the investigation was flawed, inadequate or biased.

Workplace investigations are essentially mandatory in cases of alleged harassment, theft, workplace violence, fraud or other types of dishonesty. Yet it amazes me how many organizations fail to do investigations properly, even when faced with these difficult situations.

Even large employers sometimes get it wrong

Even larger organizations can sometimes get it wrong. A recent example is provided by the legal case of Piresferreira v. Ayotte involving Bell Mobility. Piresferreira dealt with an altercation between an employee and her supervisor which culminated in the supervisor allegedly shoving her.

Following the incident, the employee in question made a complaint to the HR department. Initially, instead of fully investigating the matter, the employee was placed on a performance improvement plan (PIP).

While the Ontario Court of Appeal in this case ruled employers and supervisors can’t be held liable to employees for the tort of negligent infliction of mental distress, the employee was still awarded damages for constructive dismissal, along with $45,000 for mental suffering.

More relevant to this discussion, however, are the trial judge’s comments that Bell had failed to adequately investigate the incident or apologize for the assault, immediately and inappropriately imposed a PIP and failed to ensure there was a safe work environment to return to after the incident.

Internal versus external investigators

Many HR professionals aren’t aware of the basics surrounding investigations. While the services of a qualified investigator can be valuable, HR can and should probably be equipped to conduct at least some investigations internally. They should know how to conduct workplace investigations on their own — and when they’ve met their match and it’s time to call an expert.

However, depending on the backgrounds and qualifications of any internal investigators, and the degree of sensitivity of the matter at hand, it may be a better idea to have an impartial external investigator conduct or assist in the investigation. External investigators should probably be used when there’s any hint of conflict of interest, when disputes involve very senior individuals within the organization, when allegations are particularly serious, when disputes involve complicated legal, financial or technical issues, or when allegations relate to physical violence or serious criminal conduct.

Suggestions for employers

Organizations can do a number of things to minimize the likelihood of any trouble resulting from a botched or non-existent investigation. Some of these include:

•Obtain all sides of the story. Interview all parties to the dispute thoroughly, impartially and in private. Ask open-ended questions.

•Maintain accurate records of what was said. Wherever possible, try to capture what was said verbatim.

•Maintain confidentiality.  Don't divulge identities of accusers or specific allegations unless required to do so in the interests of allowing alleged perpetrators a chance to defend themselves, or when necessary to obtain a full picture of what actually happened.

•Preserve evidence wherever possible. When necessary, retain documents, copies of e-mails, phone records, etc. Obtain photographic evidence where applicable.

•Interview technical experts to confirm the authenticity of video surveillance footage or computer usage data.

•Consider allowing an independent person to sit in on the investigation. Allow employees to have a colleague or union representative present during interviews.

•Consider reporting alleged criminal conduct to the police. Ensure any internal investigation doesn’t interfere with police investigations.

•Consider moving the complainant and/or the alleged perpetrator to a different workstation while the investigation is ongoing.

•Depending on the nature of the complaint, consider allowing the complainant to go on a paid leave of absence pending the outcome of the investigation.

•Don’t jump to conclusions. Remember, the alleged perpetrator also has rights, and should be presumed innocent until proven guilty.

•Ensure there are no reprisals for making a complaint, unless allegations turn out to be made in bad faith.

•Know when you're out of your depth. Obtain legal advice or assistance conducting the investigation when needed.

•Produce a full and accurate report with recommendations once the investigation has been concluded.

Brian Kreissl is the managing editor of Consult Carswell. He can be reached at brian.kreissl@thomsonreuters.com. For more information, visit www.consultcarswell.com. Andrew Treash, a product writer for Consult Carswell, also contributed to this post.

Brian Kreissl

Brian Kreissl is the product development manager for Thomson Reuters Legal Canada's human resources, OH&S, payroll and records retention products and solutions.
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