Employers must investigate incidents or allegations of workplace harassment and violence. Here are some best practices to improve your workplace investigations and interviews:
1. Take every allegation of harassment and violence, including sexual harassment, seriously.
2. Investigate all allegations.
3. Determine what immediate steps need to occur. For example, secure evidence – obtain security camera evidence, and ensure that workers save text messages, voicemails, emails or other evidence. Consider separating the parties while you investigate. You may need to move the complainant to another location or team, or take other steps, for instance ensuring that the complainant and the offender do not work by themselves.
- Consider placing the alleged offender on leave pending the outcome of the investigation. Note that this can have legal implications; suspensions can be deemed constructive dismissal. Consequently, employers should avoid indefinite suspensions, and consider the following factors:
- Constructive dismissal is possible even if you suspend employees with pay.
- You must be able to justify the suspension – there must be a good reason to suspend the employee.
- The period of suspension should be reasonable, and should only extend to a reasonable time period during which to investigate the complaint.
- You need to demonstrate good faith and be honest and forthright with the employee, regarding your decision to suspend.
- You should advise the employee of both the reasons for, and the anticipated duration of, the suspension.
- Review the employment contract and policies to determine whether suspensions are expressly permitted. For more information on the dangers of indefinite suspensions see Potter v. New Brunswick Legal Aid Services, which was decided by the Supreme Court of Canada in 2015.
- Consider using your employee assistance program to support other workers.
4. When faced with an incident or complaint, do not jump the gun by making premature decisions. For example, do not discipline the alleged harasser without first investigating, or before the investigation concludes.
5. Notify the complainant and the accused, in writing, that an investigation will be conducted.
6. Assure everyone that all information will be kept confidential.
7. Ensure that the accused has a full and fair opportunity to respond to the allegations and defend themselves. This is a cornerstone of natural justice, and an essential ingredient for a credible and reliable (and legally sound) investigation.
8. Conduct interviews professionally and in an organized manner:
- Plan the interview process.
- Prepare lists of questions, witnesses, facts to be established/determined, the standards set by organizational policies which were allegedly breached, the relevant legislative provisions, and anything else which will help to keep the interview and the investigation on track and accomplish the desired objectives.
- Have available for witnesses, copies of all relevant documentary evidence which you will ask witnesses about.
9. Conduct interviews and discussions in private, for instance in a closed boardroom, and ensure that the room is adequately sound-proof.
10. While every investigation is different, a logical interview sequence is as follows:
- Start with the complainant, to gather the information which you will be trying to corroborate through interviews with other witnesses.
- Interview witnesses that the complainant identifies. For example, the complainant may tell you who heard or saw the incident. Interview these individuals next.
- Then interview the alleged harasser, before interviewing others.
- Interview others who you feel may have pertinent information.
- Re-interview anyone you need to, to clarify inconsistencies or obtain additional information.
11. Interview all relevant witnesses individually.
12. Take detailed investigation notes.
13. Use open-ended questions (for example, “Can you tell me what happened on the morning of March 2?”). Questions which force “yes” or “no” answers have their place but not when you want to elicit detailed or new information.
14. Assess the credibility of witnesses so you can assess the weight of their evidence.
15. Prepare type-written interview summaries or statements.
16. Have witnesses read and identify any errors or misrepresentations in their interview summaries or statements. Then ask witnesses to sign off on the final version of their witness summaries or statements, after you have corrected any errors.
17. Keep all information – notes, discussions, identities of the persons involved, for example – strictly confidential.
18. Prepare a written investigation report. Headings may include:
- Complaint or facts – describe the nature of the complaint and the objective of the investigation.
- Methodology – Describe the investigation process and the parties – the who, when, where and how, of the investigation.
- Evidence – Outline the detailed allegations, the responses to the allegations, and the witness accounts.
- Findings – What are the facts revealed by the investigation? What could the investigator corroborate? What was the quality of evidence given/how credible was the evidence? What policies and legislation were engaged?
- Conclusion – Were the allegations founded? What are the recommendations to prevent recurrence? What disciplinary steps should be taken?
19. Remember to complete the investigation in a timely manner – generally 90 calendar days unless there are extenuating circumstances.
20. Communicate the results of the investigation to the complainant and the offender, in writing, as soon as possible after completing the investigation, and in any event within 10 calendar days of completing the investigation.
21. Remember that the value of the investigation extends beyond the immediate incident. Consider:
- What changes or process improvements can the organization implement to prevent similar incidents?
- How can the facts be modified and used in, or to inform, training content? Bear in mind that you cannot use the investigation or the incident in any manner that breaches confidentiality.
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