Ethical & Practical Issues in Managing Internal Investigations

PRACTICAL & PRACTICAL & ETHICAL ISSUES IN ETHICAL ISSUES IN MANAGING MANAGING INTERNAL INTERNAL INVESTIGATIONINVESTIGATION

November 8, 2016

• Human Rights Code• Complaints of harassment / discrimination

• Complaints of reprisal

• Termination or Discipline based on Misconduct

• Occupational Health and Safety Act• Violence / harassment

• Fatality / critical injury / accident / explosion/ fire

• Occupational illness

• Workplace Safety and Insurance Act

WHY DO YOU HAVE TO INVESTIGATE?

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• Human Rights Code• Investigation triggered when there is an allegation of

conduct that, if believed, could constitute

• Discrimination

• Harassment

• Reprisal

• Failure to investigate is an independent breach of the Code, even if there is no actual breach of the Code

WHEN DO YOU NEED TO INVESTIGATE?

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• Occupational Health and Safety Act (New Changes)

• Investigation must be conducted into incidents and complaints of workplace harassment where appropriate in the circumstances.

WHEN DO YOU NEED TO INVESTIGATE?

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• When considering termination for cause or misconduct

• Failure to investigate can expose employer to additional damages

COMMON LAW DUTY TO INVESTIGATE

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• Downham v. County of Lennox & Addington• Downham a Salvation Army minister• Assisting a convicted pedophile released from

jail• Accused of trying to get preferential access to

social housing for pedophile• Terminated

FAILING TO INVESTIGATE – PUNITIVE DAMAGES

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• No one interviewed Downham

• No one advised Downham of the information on which County was relying

• Relied on distorted and false information

• Generous notice and $100,000 for punitive conduct

FAILING TO INVESTIGATE – PUNITIVE DAMAGES

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Procedural Fairness• Obligation to ensure investigation is fair

whether investigation is conducted internally or externally by a third party

• Standard is “reasonable” not “perfect”

FAILING TO CONDUCT A PROPER INVESTIGATION

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1. Timing

2. Deciding who should investigate

3. Collection of information and evidence• Interviews

• Collection of documentary and other evidence

4. Preparing the investigation report

BEST PRACTICES TO STRUCTURING A SUCCESSFUL INVESTIGATION

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• Once you receive a complaint or learn of a problem, determine whether an investigation is required and move quickly to commence the investigation process

• Move quickly – how quickly?• There is no set standard for timing of an investigation

• Guidance from Code of Procedure published by Ministry of Labour

• “An investigation must be completed within 90 calendar days or less unless there are extenuating circumstances warranting a longer investigation (e.g. more than five witnesses, key witness unavailable due to illness)”

• If there are valid reasons for a delay, document these reasons and communicate these to the complainant and responding party

TIMING OF INVESTIGATION

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• FAIR, QUALIFIED, THOROUGH AND COMPETENT

• Should never be person who reports to someone who is closely involved (Complainant, Respondent, Witness)

• Qualified (subject matter expertise, training)

• Available (tight timelines)

• Can write and present comprehensively

WHO SHOULD INVESTIGATE?

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• Witnesses may be anyone with information relevant to the conduct in issue/complaint, including:

• Eye-witnesses

• Key witnesses

• Co-workers and supervisors

• Ask Complainant and Respondent for a list of witnesses that may be aware of the matters at issue in the investigation

COLLECTION OF INFORMATION - IDENTIFY WITNESSES

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• Arrange through person’s manager or Human Resources

• Appropriate time and place

• Interview one person at a time

• Representation

• Determine recording technique

• Reference documents

ARRANGING THE INTERVIEW

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• Introductions

• Explain purpose of investigation and why you want to talk to the person

• Make it very clear that the investigation is confidential

• Explain recording method

• Inform witness additional interview may be required

• Provide your contact info for follow up

CONDUCTING THE INTERVIEW

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Do:

• Ask open questions

• Listen and let person tell story

• Confirm understanding of answers

• Ask questions you think you know answer to

• Record questions and answers

• Summary of interview

CONDUCTING THE INTERVIEW

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Don’t:

• Ask leading questions

• Interrupt

• Intimidate

• Act suspicious or surprised

• Assume you know what the answer will be

Refer to Tab 8 of Reference Materials “Sample Interview Questions”

CONDUCTING THE INTERVIEW

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Duty of procedural fairness does not require • Investigator to interview every witness suggested by Complainant or Respondent

• Investigator to conduct a “perfect” investigation. Investigator retains a certain degree of discretion on how to conduct the investigation process (i.e. which questions to ask witnesses and how best to gather information)

• Respondent be provided with enough information to understand the allegations against him/her. No requirement to provide full copies of any reports or statements made against him/her

CONDUCTING FAIR WITNESS INTERVIEWS

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Duty of procedural fairness does require:

• Investigator to interview the Complainant(s) and Respondent(s)

• Allow Respondent full opportunity to respond to allegations

CONDUCTING FAIR WITNESS INTERVIEWS

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• Physical evidence may be collected

• Consider whether to retain an expert to collect evidence (forensic, technology)

• Do not ignore documentary evidence that is readily available or can be obtained through a proper investigation

GATHERING REAL EVIDENCE

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Think about your audience • Who is going to read the report? • Will the report become evidence in a legal

proceeding? Prepare the report with the intent that it may be produced in subsequent legal proceedings

• What is the author’s expertise? Are they qualified to speak to certain aspects of the report?

PREPARING THE REPORT

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Written report should include:• Summary of the following:

• steps taken during investigation

• the complaint

• the response to the complaint

• the evidence of witnesses

• findings of fact

• credibility concerns (if any)

PREPARING THE REPORT

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Conclusion• Standard of proof is the “balance of

probabilities” • Report should include an analysis of how

investigator reached his/her conclusion

Recommended course of action (provided this is within the scope of investigator’s expertise/retainer)

PREPARING THE REPORT

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• Circulation of investigation report• Parties involved are entitled to know outcome of the

investigation but no absolute right to copy of investigation report

• Occupational Health and Safety Act requires that workers involved in a harassment investigation be provided with a written summary of the investigation results (not the full investigation report)

• Circulation of full investigation report should be limited to final decision-makers

INVESTIGATION REPORT

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• Just because a lawyer investigated does not mean that the report is privileged

• Issue: What is the purpose or reason for report: fact-finding or legal advice?

• Scope of retainer • Mandate and actual functions of investigator

PRIVILEGE

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Establishing and maintaining privilege

• Circulation and Communication• E-mails – always copy counsel• DO NOT forward communications to third

parties

• Properly frame the retainer and be clear about the scope of the investigation and mandate of the investigator

ASSERTING PRIVILEGE

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• Hindsight• Leads to misinterpretation and invalid weighting of

evidence• However, hindsight can be a useful tool in learning from an

event

• Bias• Picking an investigator that will be impartial

• Using the investigation as a means to “build a case”

PITFALLS AND TRAPS

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• Other common pitfalls found in reports• Dismissing or ignoring inconvenient information and assumptions

• Not considering reliability of evidence or mitigating factors

• Selective referencing of evidence collected

• Forming opinions or conclusions outside of expertise

• Sharing draft reports prematurely

PITFALLS AND TRAPS

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• Don’t bury your head in the sand if a complaint is brought to your attention

• Don’t rush to judgement. Conduct a fair, reasonable and thorough investigation

• Choose the right person to conduct the investigation - fair, qualified and competent

• Ensure that the investigation report is a well written report that is thorough and sets out not only the facts but the analysis of how the investigator arrived at the conclusion

• Collect documentary evidence, if available, to ensure a thorough investigation. Retain experts to assist to collect data when necessary.

RECOMMENDATIONS

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