How to ensure the process of complaint investigations are legally sound
Question: How do I conduct a legally sound internal workplace investigation?
Answer: Employers leave the door open to liability if they do not have an internal workplace investigation strategy in place to deal with workplace issues as they arise.
While every workplace investigation may involve different techniques, sound investigation knowledge and strategies are essential workplace skills. When an investigation is challenged at tribunals and courts, the issue usually turns on whether the investigation was prompt, fair, neutral and whether the investigator meaningfully considered all the information necessary to reach a proper conclusion.
Decision-makers have been critical of investigations where the employer has been shown to have not provided procedural fairness, taken complaints seriously, used trained investigators, followed their own policy, remained neutral during the process, properly documented the investigation or handled reluctant complaints properly. Decision-makers have chosen to not uphold an employer’s disciplinary decision where an investigation was not conducted in a timely, thorough or fair manner.
The following are essential ingredients of such a strategy or policy you should follow to safeguard your investigation.
Know when to use an internal or external investigator
External investigations typically involve more complex legal issues, such as a reportable occupational health and safety incident, and may offer the added benefit of privilege if done properly. Internal investigations are typically those within the familiarity, expertise and training of human resources.
Provide procedural fairness
Never “ambush” anyone — particularly where an investigation names an employee. Before an investigation wraps up, it should provide an employee with the particulars of the allegations and the employee should be able to respond to the allegations.
Gather relevant evidence
The goal is always to gather the best possible evidence.
•Interview everyone with relevant information. When interviewing, be careful to record everything, from the date and time to how the witness responds to information or questions. Write everything down.
•Read your notes from the interview as soon after as possible and identify any gaps or information still required.
•Keep all original notes or forms of recorded evidence. Identify and collect any additional evidence that relates to the matter, such as videos, photos, documents and email.
•Know your level of expertise and when you need to call in a specialist to assist you in an area such as computer systems, forensic or medical.
Keep an open mind and remain neutral
A “pre-determined” investigation is unacceptable and negligent. Don’t be quick to judge — to withstand judicial scrutiny, the investigation must be objective.
Carefully document the investigation and its process
Findings need to be supported. Ensure the evidence you have gathered is accurate. Whenever possible, have statements reviewed by individual providing statement for accuracy.
Deal with the reluctant complainant or witness
When an employee shares something but doesn’t want you to do anything, or wants you to do something anonymously and liability may be involved, explain the obligation to investigate under human rights, occupational health and safety.
Apply the correct standard of proof
The standard is not “beyond a reasonable doubt.” Cases judged on whether proof is ‘beyond reasonable doubt’ require almost 100 per cent certainty of guilt whereas cases turning on a ‘balance of probabilities’ require less onerous proof (51 per cent or more).
Assess and weigh evidence
Know the relevance rule: Does the information have a logical connection to the issue?
Know the difference between direct and circumstantial evidence and apply more weight to what is direct than circumstantial.
Is credibility at issue? If it is, you’re going to have to support your conclusion on credibility with the evidence you’ve gathered.
Prepare a report
Assess and weigh the evidence. It is unusual for any investigation to result in something less than a written report where there is potential for significant consequences.
Follow a format. For example: mandate, summary, process, identification of main parties, relevant statutory and internal policies, complaint allegation, synopsis of evidence, factual findings, conclusion and recommendation.
Share the report with the appropriate people
When an investigation is completed and action is taken, even if confidential, any complainant involved in the matter should not be left confused or uncertain because it seems like it’s “business as usual.” Generally outline for the complainant what has been done to address his concerns, such as reprisals, and what remedies have been implemented to prevent future occurrence.
The foregoing provides a general framework recognizing every workplace investigation is unique and each will present its own challenge. In every situation, an investigation must be conducted in good faith and with a view to finding out the truth.
Rebecca Saturley is a partner at Stewart McKelvey in Halifax. She can be reached at (902) 420-3333 or [email protected].