Workplace conduct is being more closely scrutinized today than ever before.
Societal views regarding what crosses the line into bullying, harassment and discrimination is shifting. Meanwhile, adjudicators are taking note and adjusting accordingly. As a result, employers are seeing an increase in workplace complaints and are facing increased liability for failure to appropriately investigate and address those complaints. With many returning to the office after an extended period of working from home, the number (and importance) of workplace investigations continues to increase. This article provides a crash course in some of the key steps in running an effective and fair workplace investigation.
Step 1: Understand the complaint
It is useful to obtain complaints in written format to ensure that you have a clear record and understanding of the allegations made and to establish the scope of the investigation. Regardless of whether the complaint is made verbally or in writing, ideally it should include as much detail as possible, including the date and time of the incident, where it occurred, who was involved and the specific words or behaviour complained of.
Step 2: Assess the duty to investigate
Most workplace complaints will require some degree of fact-finding to determine what occurred and take appropriate measures. However, depending on the seriousness of the allegations and the evidence available, the investigation required may range from a relatively brief and informal fact-finding exercise to a more formal and lengthy engagement. Keep in mind that it is not necessary to receive a formal complaint to trigger the employer’s duty to investigate.
Step 3: Consider interim measures
In sensitive workplace investigations, or where retaliation against the complainant is a concern, it is sometimes appropriate to remove the respondent from the workplace while the investigation is ongoing. In other cases, employers may consider reorganizing teams and reporting relationships to prevent the respondent and complainant from regularly interacting.
Step 4: Choose an investigator
For employers that have the necessary skills in-house, investigations can often be conducted internally. However, for more serious allegations or where allegations relate to upper management, employers should consider external investigators. It is crucial that the investigator is perceived as impartial and that they possess the skills and experience necessary to investigate the allegations to ensure the results are reliable.
Step 5: Gather the evidence
The next step is gathering evidence. It is critical to act quickly. Many types of evidence deteriorate or disappear over time: Memories fade, witnesses may be improperly influenced, documents are lost or disposed of and CCTV footage (if it is available) is typically deleted at regularly scheduled intervals. After reviewing the complaint, consider if there is any video footage, photos, emails or documents that could shed light on what occurred and review any applicable policies or procedures.
Step 6: Communicate the rules
Once you have collected as much evidence and information as possible, it is time to conduct interviews. In each interview you should start by ensuring that the individual understands his or her role and obligations in the process. Participants should be informed that they have an obligation to keep the investigation strictly confidential. They should also be assured that retaliation for participating in an investigation is prohibited. Finally, it is important to explain to all participants that information collected during the investigation will be disclosed on a need-to-know basis. Most notably, respondents have a right to know the allegations made against them so they have a fair opportunity to respond.
Step 7: Conduct the interviews
It may be useful to prepare an outline of questions for each witness, but don’t become married to the script; ask followup questions as needed and be sure to explore any new or unexpected information that is provided. We generally recommend starting with broad open-ended questions and then asking more specific questions as needed. Before ending the interview, always ask individuals if they have anything else they would like to add. Whenever possible, have a dedicated note-taker to ensure you have a good record of what was said.
Step 8: Assess the evidence
After completing the interviews you must consider and weigh all of the evidence in order to make a determination regarding what most likely occurred. Consider all of the evidence collected, make a note of any inconsistencies and consider what is most probable based on everything you know. Assessing the credibility of the participants is often a critical piece.
Step 9: Make a decision
Once you determine what most likely occurred, you will need to assess whether it constitutes misconduct, determine the appropriate outcome and notify the parties.
Step 10: Revisit practices
Regardless of whether misconduct is found, it may be useful to consider whether the company could make changes to reduce the likelihood of similar situations occurring. Are the policies clear? Did employees receive sufficient training?
Workplace investigations are inherently stressful and difficult for everyone involved. However, they are becoming a regular feature in workplaces and present an opportunity for the employer to identify and address issues that are affecting the workplace, develop solid procedures and take measures to prevent future incidents.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern. The article is for general information purposes only and does not constitute legal advice. •
Sarah Blanco is an associate at Roper Greyell, practising in employment and labour law with a focus on injunctions, wrongful dismissal claims and labour grievances in the workplace.