It goes without saying that the entire world is currently treading in unchartered waters. The COVID-19 crisis is something that this world has not seen or experienced in many generations, if ever! All industries, businesses and sectors are assessing how to carry on with “business as usual” when the circumstances are anything but “business as usual.” In the wold of workplace investigations, the same questions are being asked.
Ordinarily, a solid workplace investigation rests on four pillars; namely – fairness, thoroughness, timeliness and confidentiality1. If not handled appropriately, the COVID – 19 crisis has the potential to rock that foundation in two ways – it may impact the fairness and timeliness of an investigation.
The impact of COVID-19 was sudden and unexpected. It is not like a snowstorm where you know it is coming, you know what to expect and you know how long it will last. In this case, we literally know nothing. What we know and understand is developing and changing every day. You may be in the middle of investigations, or you were preparing to conduct investigations, or your workplace was in a frenzy because of some unresolved conflict. The existence of COVID-19 does not change the fact that the issues that led to the need for an investigation still exist. We recognize the importance of continuing to meet our clients’ needs and I suspect it is the same for many of you. Here are four tips to assist you in continuing to conduct fair and timely investigations in the midst of the COVID-19 crisis.
1. Strategically assess & adjust
Take a careful look at your investigations and strategically assess the appropriate next steps. If you are at the report-writing stage, it is likely that you will be able to complete the report as planned, albeit perhaps from home and not in the office. If you are mid-investigation, depending on the nature of the investigation, you may be in a position where you can hold off until things stabilize a bit. You may determine that this is the more appropriate course if in-person meetings are important for the investigation or the parties indicate that they prefer to meet in person. In other cases, you may need to consider altering your process or approach.
The reality is it is not business as usual. So, in order to be fair, we have to be prepared to adjust our processes and make certain accommodations. I mention the use of technology below, but you may find yourself in a situation where a party or witness is not technologically savvy. Be willing to adjust. It may mean a teleconference instead of video conferencing. It is not ideal, but given the circumstances, it may be preferred instead of unduly delaying the completion of the investigation.
2. Utilize technology
Usually when conducting investigations, the preference is to conduct interviews in person. This allows you to engage the person with whom you are speaking, develop a rapport and assess how they are understanding and responding to your questions. Given the Government’s recommendation for social distancing as a precautionary measure in dealing with COVID-19, in-person interviews are ill-advised at this time. Thankfully, we live in an age where technology offers us many alternatives such as Skype, Whatsapp calls, Zoom and Facetime. Consider utilizing any of these mechanisms. I recommend video conferencing instead of teleconferencing. I say this because there are still advantages to having an opportunity to observe and directly engage with an interviewee. You want to ensure that your investigation is still as thorough as possible.
3. Be prepared
Everyone is under a great deal of stress right now. While it is possible that the need for investigations may drop in the short term with many employees working from home, we also expect that complaints will still come forward in a climate where people are struggling to adjust to a new normal. Declining to respond to complaints for the time being is likely not compliant with various statutory obligations, and regardless is unfair to the parties involved if an investigation can proceed. Considering now how you will fulfil your obligations to conduct investigations in these current circumstances will better prepare you for what is to come.
4. Communicate, communicate, communicate
I cannot emphasize enough the importance of communication. I understand that we are all distracted right now by what is happening, but it is important that you communicate with the parties in an investigation. Let them know that you have not forgotten about the issue and share with them how you propose to handle it in the coming days. Give them an opportunity to give their input. If they are invited to provide buy-in and are informed, they will less likely feel that the process is unfair or untimely.
Don’t panic! Be calm and decisive in your approach.
By Dana J. Campbell, Rubin Thomlinson LLP
1 Human Resources Guide to Workplace Investigations – Janice Rubin and Christine Thomlinson, 2nd Edn. at p.47
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