Workplace investigations are often necessary when resolving workplace disputes or employees’ complaints.  An investigation that is timely, thorough and properly conducted can help employers get to the bottom of a dispute, address employee morale issues, and mitigate the risks of subsequent litigation.

This article will set out general tips on conducting fair, thorough and effective workplace investigations.

When should you investigate?

Employers must assess each employee complaint or workplace dispute and determine whether they will investigate the situation, and if so, the extent of the investigation to be conducted.  If the complaint or dispute relates to a potential policy breach or unlawful behaviour, an investigation should be conducted, particularly if the allegations raise human rights concerns.  However, if it is apparent that an allegation is unfounded or frivolous, an investigation is unlikely to be necessary.

Who should investigate?

An investigator must be impartial and be reasonably perceived to be impartial.  This means that the investigator must keep an open mind and base any decision on relevant and credible evidence.  Investigators must be careful not to jump to conclusions before the completion of an investigation, even if evidence appears to be overwhelmingly in favour of one version of events.

The following are some of the factors that may weigh in favour of a finding that an investigation has not been impartially carried out:

• Failing to contact witnesses;
• Failing to give a respondent the particulars of a complaint;
• Issuing discipline before an individual is given the opportunity to respond and refusing to listen when an attempt is made to explain;
• Not questioning a complainant’s credibility; and
• Destroying investigation notes.

The need for an investigator’s impartiality does not necessarily mean that an employer always has to appoint an external party to conduct an investigation.  Internal investigators may be used in appropriate cases if they have not had any significant involvement in the incident in question and have no particular stake in the outcome.

The appointment of an investigator will depend on an assessment of the time and cost required to conduct the investigation, the power relationships at play in the workplace, the nature of the complaint and the seriousness of the allegations.  Whenever possible, employers will want to appoint an investigator, whether internal or external, who brings experience and sound judgment to an investigation.

How should an investigation be conducted?

Employees who are accused of wrongdoing should be afforded due process, fairness, candour, sensitivity and respect throughout an investigation.  Due process includes the right to know the nature and substance of the allegations, and the right to respond thereto.

An investigator will need timely and accurate information from reliable sources.  Accordingly, interviews should be conducted with the employees and others who may have relevant information.  In conducting interviews, investigators will want to keep the following in mind:

• The interviews should be conducted in an order that makes logical sense given the facts of the case.  For instance, an investigator might want to start with the complainant and his or her suggested witnesses, followed by the accused employee and any witnesses suggested by him or her.
• More than one interviewer should be present: one to ask questions and one to take notes.  Notes should be reviewed after the interview for completeness and accuracy.  Original notes should be kept in the investigator’s file.
• Interviews should begin as soon as possible to avoid prejudice to the employer’s position in taking disciplinary action, and to preserve memories of the incidents in question.
• Only the information that is necessary to conduct a meaningful interview should be conveyed to witnesses.  Confidentiality, to the extent possible, must be maintained.  Interviewees should be instructed not to share the contents of their interviews with others.  However, investigators must be careful not to guarantee that information given by interviewees will be kept confidential, as the investigators could be required to testify as witnesses in any future litigation.  Moreover, the accused employee must be afforded the opportunity to respond to allegations or inculpatory statements made by witnesses.
• Open-ended questions are best (e.g. who, what, when, where, why, how).  Closed-ended questions can seem accusatory, suggest the answer and give the interviewer less honest or less fulsome information to work with.
• Interviewees should be given the opportunity to tell their side of the story.  Clarifications should be requested when necessary.
• When interviewing the accused employee, the investigators’ objective is to provide him or her with a chance to respond to allegations made, and to obtain his or her version of events.  The employee may respond verbally or in a written statement.  While there is no obligation on the employer to provide or allow the presence of outside legal counsel, there may be circumstances where it is not objectionable, provided there is agreement as to the limited role the lawyer would play during the interview.

Concluding an Investigation

At the conclusion of an investigation, the investigator must determine whether, on a balance of probabilities, the allegations are true.  The balance of probabilities requires an investigator to ask him or herself whether it is more likely than not that the individual has engaged in the alleged wrongdoing.  The answer to this question will depend on the findings of fact made by the investigator, including the assessment of each interviewee’s credibility.

If a finding is made that, on the balance of probabilities, the accused employee engaged in the alleged wrongdoing, this will have to be communicated to the parties, along with an explanation of how the conclusion was reached.  It will then be up to the employer to determine what, if any, disciplinary response is required.