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Workplace investigations are critical, not only to satisfy statutory and other legal obligations but also to support a healthy workplace. The decision to carry out a workplace investigation is, however, only one step in a complex process. Specifically, the manner in which an investigation is carried out is critical to ensuring a successful investigation process.    

The following is intended to be a general review of important steps that should be taken in conducting a workplace investigation.  

WHETHER TO CONDUCT A FORMAL INVESTIGATION

Once a decision to investigate a matter is made, the first choice that must be made is whether to conduct a formal or informal investigation.

A formal investigation involves interviewing affected individuals, allowing for feedback from all affected parties, and one that results in formal investigation findings.

In general, the more serious the circumstances, the more likely the decision will be to conduct a formal investigation. This includes circumstances such as where there is the possibility of litigation, a potential for a finding of harassment or violence, and/or where it could result in serious public relations concerns.  

INTERNAL AND EXTERNAL WORKPLACE INVESTIGATIONS

An investigation can be conducted internally or externally. 

Internal Investigation 

An internal investigation would typically be done by an individual within the company, such as an appropriate person from a Human Resources department.  

External Investigation

An external investigation, by contrast, would typically be conducted by a third-party professional, such as a lawyer, who will assess the circumstances and provide formal feedback.

NOTICE AND WARNING TO PARTICIPANTS

It is important that individuals participating in investigations be provided with sufficient notice and related warnings. This includes both the requirement for confidentiality and a bar against any interference with the investigation.  

It may also be appropriate that a temporary reorganization take place within the workplace. If, for example, the investigation involves individuals working closely, then the workplace may need to be adjusted. It might also result in changes to reporting structures.  

CREATE A PLAN FOR THE INVESTIGATION

To be effective, an investigation should be formally planned out. This should include the design of an outline of the issue, the development of a witness list, sources for information and evidence, and interview questions aimed at securing crucial information and details. Documentation should also be collected in a manner that ensures security and confidentiality.  

It is equally important that investigators properly outline the key issues and definitions, including specifically addressing statutory and common law definitions. It is further important to review any company policies as they may be relevant to how an investigation should take place.

DEVELOP INTERVIEW QUESTIONS

The investigator should ideally be prepared with a list of questions for the complainant(s) and accused. As much as possible, these questions should be prepared in advance of the interview. The aim of preparing the questions is to build a framework for an effective interview. It is important to design questions in a way that provides all the necessary information to complete a thorough investigation.    

CONDUCTING THE INTERVIEWS

Interviews must be conducted effectively.  

This includes maintaining impartiality throughout the process. The investigator should specifically ensure they maintain openness and do not force the interview in any specific direction. An investigator should also not be aggressive in securing information. In other words, an interviewee should be provided with ample opportunity to provide their perspective on matters.  

An effective interview includes securing sufficient information from the interviewee and verifying who else should be interviewed to complete the process. Investigators must also do their best to assess the credibility of information, including comparing it to other information gained throughout the investigation process.  

Detailed notes should be taken in order to provide an easy-to-follow record of the investigation that can later be reviewed to provide additional support for the findings.     

Finally, it is crucial that all parties, including witnesses, are informed about the investigation process. This includes reminders surrounding confidentiality and the importance of being forthright.  

INTERVIEW PLAN EXAMPLE

The time it takes to complete a thorough investigation will vary depending on the circumstances. The following, however, is an example of how an investigation can be organized:

First day of investigation

  • Interview complainant (aim to collect enough information from the complainant to determine potential witnesses)
  • Review interview notes and complete all details
  • Interview accused (aim to understand other perspectives, gather evidence, and identify potential witnesses) 
  • Complete notes and prepare for the next interview
  • Interview first witness 
  • Complete interview notes
  • Interview the second witness
  • Complete interview notes
  • Review notes for the day and design plan for next day

Second day of investigation

  • Complete any witness interviews
  • Conduct follow up interviews with the accused
  • Conduct follow up interview with the complainant 
  • Conduct follow up interviews with witnesses  
  • Review interview notes and evidence
  • Review credibility matters 

This process aims to ensure that all evidence is collected properly and that the related information is clear.  

Third day of investigation 

  • Conduct final interview with the accused and the complainant
  • Begin preparation of investigation report/summary

Development of Written Summary Investigation Results

A final report should follow formal investigations. 

The report should be prepared in a manner that keeps in mind that an investigation can be challenged and that it could be heard/reviewed by a court.    

The investigation report should be concise and include a clear trail of information (including evidence) that supports the findings. This includes the investigation notes (taken during interviews) and the documents that were reviewed in support of the investigation findings.  

The investigation notes should be clear, concise, and factual, and should support the findings. They should also be properly recorded and dated.  

The final report should include/summarize the following:

  • The circumstances that were investigated (including any relevant dates);
  • Who was involved in the investigation;
  • Key findings (both in terms of facts and credibility), along with the sources that support these conclusions;
  • Any policies or guidelines that were reviewed/relied upon;
  • Conclusion(s) reached;
  • Any issues that could not be resolved (i.e., where there was insufficient information);
  • Any actions taken because of the investigation.

The investigation report should ultimately be a document that can be relied upon if reviewed by a government agency/department or court. In other words, it should demonstrate that the matter was reviewed in a professional manner and that the results were reasonable/defensible.  

Review of Results 

Once the investigator makes their determination, the employer should notify both the complainant(s) and the accused with details of the outcome.  

There should be feedback that includes confirmation that the matter was taken seriously and details of the steps that were followed.  It is also advisable to follow up with the complainant to ensure that no other matters and/or concerns remaining outstanding.  

The employer will then need to decide what steps if any, should be taken. This may include discipline up to and including termination of employment. Determining the appropriate remedy should include an assessment of the findings and the specific circumstances of the employee/accused. This can include a careful assessment of the appropriateness of less severe actions, such as remedial training.

HOW CAN SULTAN LAWYERS HELP WITH WORKPLACE INVESTIGATIONS?

Sultan Lawyers provides comprehensive workplace investigation support to employers. This includes a full review of specific matters in the workplace and a review of all related policies and procedures. For further information and assistance, please contact the Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to khayward@sultanlawyers.com


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