Effective Internal Workplace Investigations

1. Effective Internal Workplace Investigations Best Practices

2. 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

3. 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?

4. 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

5. Faulty Investigations • An employer’s worst nightmare • Liability • Civil suits • Human rights complaints

6. 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

7. Interim Action • Determine if interim action is necessary • Separation of the parties • Key considerations • Complainant’s wishes • Severity of the allegations

8. 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

9. 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

10. 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

11. 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”

12. Key Principles Underlying an Effective Process • Competent investigator • Procedural fairness • Timeliness • Thoroughness • Support for persons involved • Confidentiality • Documentation

13. 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

14. 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?

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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