Investigations In The Workplace
Workplace investigations are inevitable for most organizations and employers face significant pressure to conduct them properly. A flawed investigation, besides compromising the information a decision-maker will need, invites a range of risks. From a legal perspective, the courts scrutinize the conduct of an investigation; where an employer has improperly disciplined a worker on unsubstantiated grounds, a finding of wrongful dismissal may follow. Further, as a number of recent cases demonstrate, if a court finds that a poorly conducted investigation contributed to the wrongful dismissal, it may hand down additional sanction in the form of aggravated damages.
What are the characteristics of a proper investigation? The answer depends on the industry, interests, and composition of a company, but what follows are some of the general guidelines all employers should adhere to.
Preparation is key. Consider:
- Who the investigator(s) will be. Internal investigators may be better appraised of a company's circumstances while external investigators, on the other hand, may be seen as more impartial. In some cases, the nature of the misconduct may require investigators with specialized skills such as forensic computing or workplace counselling.
- The scope and purpose of the investigation. Recent, isolated incidents may warrant a more focused outlook. On the other hand, systemic, long-term issues may require the employer to contact former and even non-employees.
- The evidence needed. Preserving the evidence may require the employer to secure emails and computer data before an employee has an opportunity to delete them. At the same time, the employer must be aware not to overreach into an employee's private property and affairs.
- Interim action. A complainant may need an immediate response such as temporary relocation or leave to accommodate his/her situation. On the other hand, the working conditions of the subject of the investigation should not be altered; a material change in his/her working conditions may constitute a form of dismissal.
During the Investigation:
- Interviews should involve enough witnesses to make the investigation effective, and no more. All parties involved should be on a "need to know" basis.
- During interviews, assure the witness that his/her testimony will be kept as confidential as possible. It is good practice to have two interviewers present so one person can accurately record the answers to the questions his/her partner asked.
- Confirm the accuracy of the notes made by reviewing them with the witness after the interview.
- It is important that the employee(s) under investigation should have an opportunity to fully respond to allegations made. Until then, the employer should refrain from taking any actions that would suggest the result has already been determined.
After the Investigation:
- Review all of the evidence and ask: is it more likely than not that the purported event occurred? If the evidence is inconclusive, additional interviews or information gathering may be necessary.
- Create a final report which includes a summary of the complaint, steps followed, information obtained, and conclusion on the evidence.
- If the accusation is substantiated, an appropriate response should address the parties involved, not only disciplining the subject of the complaint – in a proportional manner – but addressing and mitigating the harm done to the complainant.
- If the incident is part of a larger problem, changes in company policy or additional education/training may be necessary.
Conducting a proper investigation will not prevent future problems in the workplace from arising, but it will help ensure that the employer is in the right position to make the right decisions.
Note: This a reprint of an article by Nicole Byers & Eric Ito of Miller Thomson LLP.