1 Effective Internal Workplace Investigations Best Practices

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Effective Internal Workplace Investigations

Best Practices

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Acknowledgements

• Sexual Harassment Investigations: How to Limit Your liability and More – a Practical Guide– Arjun P. Aggarwal and Madhu M. Gupta. 2004. Email

harassment_publications@yahoo.ca

• Human Resources Guide to Managing Workplace Harassment– Barry Kuretzky and Jennifer MacKenzie. 2003.

www.canadalawbook.ca

• Workplace Respect Toolkit– Construction Owners Association of Alberta. May 2005

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My Mandate

• What triggers an investigation? • What types of events warrant an

investigation?• How does one begin conducting an

investigation?• Who needs to be interviewed?• What confidentiality issues are present and

how should they be addressed?

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Why Is An Investigation Necessary?

• Performance and productivity– Swift resolution of conflict

• “Walks the talk” – builds credibility/trust in the Respect in the Workplace

Policy

• Protects the corporation against liability – when done effectively

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Faulty Investigations

• An employer’s worst nightmare

• Liability– Civil suits– Human rights complaints

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What Triggers An Investigation?

• Someone makes a complaint– Offended person– Third party (an observer)– Verbal report– Written report

• Treat every complaint seriously– Informal process– Formal process

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Interim Action

• Determine if interim action is necessary– Separation of the parties

• Key considerations– Complainant’s wishes– Severity of the allegations

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Choosing Between Informal And Formal Processes

• Consider the nature and severity of the conduct at issue

• Every complaint does not require a full-fledged formal investigation

• Whenever appropriate/possible, informal processes preferred

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Informal Processes

• Less stressful for everyone• Quicker, more flexible, involves fewer people• Best option for“win-win” for all

– Mutually satisfactory outcome for both

• Appropriate for low level concerns• Wide range of strategies

– Reasonable expectation that the action taken will resolve the problem

• Voluntary

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Factors Pointing To A Formal Process

• Previous complaints against the same person

• Person has received previous warnings

• Alleged conduct is particularly serious

• Evidence of or serious concern about retaliation

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Factors Pointing To A Formal Process Continued …

• May be the only way to protect a person unfairly accused

• May be the only way to put an end to a complaint for a person who is unable to “let go and move on”

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Key Principles Underlying an Effective Process

• Competent investigator

• Procedural fairness

• Timeliness

• Thoroughness

• Support for persons involved

• Confidentiality

• Documentation

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Choosing the Investigator

• Options– A single person– A team of two– A committee of three

• Internal or external

• Time and the skills to do the job effectively

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The Investigator

• Competent– Trained and experienced

– Neutral and objective

– Good writing skills

– Capacity to act as a good witness in the case of a subsequent proceeding

• Fact-finder– What happened?

– Did this result in a breach of policy?

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Investigator’s Responsibilities

• Analyze the allegations• Develop an investigative plan• Interview all parties (in person)

– Written signed statements

• Keep the complainant and respondent informed of the progress of the investigation

• Review all relevant documentation• Analyze the information gathered • Prepare a written report

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Essentials of Procedural Fairness

• No bias • Respondent informed of the complaint and given a

full opportunity to respond to all allegations– Copy of the written complaint– Time to consider response– Right to representation

• Union representative• May want legal counsel (who pays?)• Other

• No disciplinary action taken before the investigation is concluded

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Timely Response

• Prompt action is essential• No clear definition of how to define

“prompt action”• If possible, upon receipt of the complaint or

at least within 24 hours– May not be realistic

• Concluded as soon as possible– Without compromising thoroughness

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Confidentiality

• Avoid promises of absolute confidentiality– Confidentiality does not equal anonymity– Will be maintained to the extent possible

• Only those who need to know– Relevant supervisory personnel– Respondent – Witnesses

• Name of complainant• Information provided becomes part of investigation report• Report may be subject to disclosure under certain proceedings

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Location of the Interviews

• Impact on confidentiality

• Impact on the comfort levels of the interviewees

• Preferably away from the worksite– Conference room of nearby hotel– Office of the external investigator

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Documentation

• Every step documented– All telephone calls, meetings, documents reviewed

• Final report– Describes the investigative process– Summarizes all of the evidence– Reaches a conclusion on the merits of the complaint – Draft shared with both parties prior to being finalized

• Sometimes decided not appropriate to share the full report• If so, provide parties with general conclusions of the

investigation

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Dealing with the Aftermath

• Rumours and gossip not uncommon– May need to set the record straight– Essential to be mindful of the personal

information and sensitivities of the parties affected

• Negative impact on employee morale and productivity– May need some form of intervention at the unit

level