How often do you undertake an internal investigation? In an environment where employers are under increasingly strict obligations to investigate workplace incidents over an increasing number of issues, employers in Ontario are facing more complaints.
In their presentation on conducting effective workplace investigations at the recent Davis LLP Ontario employment and labour conference, lawyers Karen Bock and Tatha Swann pointed out that employers may now face complaints about violence and harassment under the Occupational Health and Safety Act. And many are facing such complaints.
Moreover, employers are facing increasingly sensitive matters—human rights allegations, improper use of confidential information, negligent harassment and violence policies—and increased liability for deficient internal investigations. Employers and individuals involved in conducting an investigation may get in trouble for:
- Intentional or negligent infliction of mental distress
- Conducting a negligent investigation
- The tort of gross negligence
- Violation of privacy
- False imprisonment
Bock and Swann suggest organizations consider an effective investigation strategy as good risk management. Conducting internal investigations by the rules, fairly and in good faith will limit monetary claims by employees and public relations problems leading to a damaged reputation. They offer the following outline of an effective investigation process.
- Determine the scope and potential risks at the earliest opportunity:
- Is a formal investigation necessary? Is conflict resolution/mediation a better approach?
- Consult and comply with your policies and/or collective agreement
- Get a written summary of complaint before meeting with complainant, if possible
- Focus on what is relevant to the alleged misconduct; don’t make an investigation a “fishing expedition”
- Determine who will conduct the investigation
- Will you use an internal investigator or will you hire a third-party investigations expert, e.g., a private investigator?
- What about a lawyer? In this case, the investigation report might be privileged and exempt from disclosure.
- Does the investigator (internal or external) have appropriate training and/or experience in workplace investigations, sexual harassment or discrimination complaints?
- Is the investigator neutral and unbiased?
- Will the investigator be the decision maker too?
- Conduct a fair investigation
- Don’t jump to conclusions: avoid biased investigations or preconceived notions unsupported by evidence
- Carefully gather documentary evidence: ensure information gathered is complete, fair, well-documented and well-organized
- Make any necessary interim changes to the complainant’s or respondent’s employment status:
- Ascertain the complainant’s wishes and accommodate (within reason)
- Be aware of the respondent’s privacy and reputation rights (“innocent until proven guilty”)
- Interview parties involved
- Conduct interviews as soon as possible, while memories are fresh and vivid; face-to-face interviews of key witnesses are crucial
- Ensure security of interviewer and interviewees
- Ensure privacy and confidentiality of interviews
- Keep full and complete record of interviews
- When interviewing the complainant, make sure to ask precisely what happened: who, what, where, when, how
- Take careful and accurate notes
- Identify key witnesses who have direct or first-hand knowledge and who should be interviewed
- Assess potential risks to organization
- When interviewing the respondent, inform the person that she or he has the following rights:
- To know the full scope of the allegations
- To have an opportunity to respond fully to the allegations
- To have the matter investigated in a timely manner
- Individuals in workplace investigations do not have the right to silence or to have legal counsel present (employer may permit the latter, if appropriate)
- Concluding the investigation
- Assess the information the investigator has collected
- Identify any holes in the stories of those involved
- Follow up on missing or conflicting points with additional interviews or by seeking additional documentary evidence
- Do not simply rely on the investigator’s conclusions, seek clarification where necessary
- Apply the standard of a balance of probabilities to make your determination:
- Did the investigation substantiate the complaint?
- Was the investigation inconclusive?
- Communicate the outcome of the investigation to those involved (not necessarily all of the information included in the investigation or the final report)
- Determine and communicate any remedies or discipline
- Remind all involved of their obligation of confidentiality
- Take steps to prevent future occurrences
Upon completing the investigation, employers might want to implement some general remedy such as training or counselling for staff in order to help them deal with the fallout or better understand their obligations and the employer’s policies and practices. An inconclusive investigation can leave employees confused. They may need reassurance that the investigation was still effective, even though nobody was found explicitly guilty or innocent.
When it comes to internal investigations, if you are unsure of what to do at any step along the way, it’s probably a good idea to call your lawyer.
Now tell me: when was the last time you conducted an internal investigation? Did it go well? What was the result? Do you have a comprehensive investigations policy? Does it cover what I discussed above?
First Reference Human Resources and Compliance Editor