By David Brown

For a variety of reasons, workplace investigations are becoming increasingly common in businesses of all sizes. Investigations can be required under law (for example, under the Workers’ Compensation Act or the Human Rights Code), under collective-bargaining agreements or under company policy. Other times, investigations are initiated by good corporate practice, recognizing the benefits of investigations and the costs of losing skilled labour.

Regardless of the reason for the workplace investigation, those that are effective often share essential characteristics. As I have previously argued, these traits include objectivity, thoroughness and a respect for process. Building on these characteristics, in this post we explore seven traits of a highly effective investigation.

Trait #1 – Move Quick
While investigations should never feel rushed, they should nonetheless be initiated quickly. There are a variety of reasons why timeliness is recommended, mostly as it relates to gathering evidence. If days or weeks are allowed to go by, important physical evidence may be disturbed. This can include important emails, essential documents and phone messages, as well ensuring the integrity of accident sites.

Timeliness is also important in obtaining accurate witness information. As time advances, a witness’ version of events is increasingly likely to be influenced by personal perceptions, emotions and the frailties of memory. In a highly effective investigation, the company initiating the investigation will want to move quickly to commence the process, and the investigator will want to speak to key witnesses and gather all relevant physical evidence to ensure the integrity of the investigation and the outcome.

Trait #2 – Establish a Clear Mandate and Objectives
Recognizing the importance of timeliness, it’s also crucial for an investigation to be organized, and oftentimes slowing down at the beginning will allow for a quicker end result. There is no better way for a company to do this than by establishing clear terms of reference for their investigator.

Terms of reference create a mandate, determine the scope of responsibilities and establish expectations. These terms may also identify resources available to the investigator and expectations with respect to timeliness.

As the investigation is undertaken it is not uncommon for investigators to be flooded with emails and witnesses of marginal relevance. Terms of reference should squarely establish the central question for the investigator to answer and should guide the investigator in staying focused and in avoiding unnecessary distractions.

Trait #3 – Assign the Right Investigator
Terms of reference may also help a company choose an appropriate investigator, as there may be a variety of options to choose from, including:

• Internal human resources;
• A member of management or a supervisor;
• An outside investigator or contractor;
• Legal counsel.

In choosing an investigator, the company must consider objectivity. If an internal HR person or a member of management have knowledge or relationships which may suggest bias, the company should be looking at other options. However, if an internal person can objectively assess facts, it may be entirely appropriate for an investigation to be conducted in-house.

Assessing skills is also essential in appointing an investigator. For instance, if a complaint stems from improper use of computer equipment, a forensic computer specialist may be required to collect all relevant information. The scope of the retainer and the type of information being gathered should establish whether specialized skills are required.

One significant benefit of retaining legal counsel to conduct an investigation is solicitor-client privilege. If a company appoints legal counsel with the mandate of investigating an internal HR issue and providing legal analysis and recommendations, work produced during the course of the investigation, including notes, the terms of reference and any final reports, would be subject to solicitor-client privilege and would be protected from disclosure to a third-party. Accordingly, while the work product of an internal or an outside investigator may need to be disclosed further to an Access to Information request or if the workplace conflict ever resulted in litigation, a lawyer acting in a legal capacity would not be required to produce this information.

Trait #4 – Be Prepared
Humans are most effective when they are prepared, and investigators are no different. Considering this, once an investigator is appointed, considerable efforts should be made for early preparation.

At the outset, the investigator should review all documentation relevant to their mandate. This may include a collective-bargaining agreement, company policies (such as investigation policies, harassment policies or other) and HR files on the persons involved. Other documentation which may be available at the outset could include the complaint, emails and video surveillance footage.

Early preparation should also include creating a potential witness list, as well as an investigation strategy. Thought should be put to the order of interviews, as well as the style of interviews. For simpler matters, a discrete talk over coffee with the complainant and the accused may be sufficient to have a full understanding of the issues and to brainstorm resolution strategies. Other times, a thorough and comprehensive investigation will be required to have a full appreciation of the issues.

Preparation should also include an outline of questions. This does not necessarily mean that each question must be written down and recited verbatim before the witness, but the investigator should be prepared to lead the conversation in an orderly and methodical fashion.

Trait #5 – Focused and Organized Interviews
Conducting interviews is highly personal, and there is not necessarily any single right approach. However, investigations are essentially a fact-finding mission, and some interview techniques are more likely to produce forthcoming answers.

At the outset, investigators should meet each witness separately. The investigator should provide a brief introduction and be honest about the purpose of the interview. This introduction should communicate that the interview will allow the person being questioned the opportunity to give their version of events. Particularly when dealing with the accused, the interviewer should make clear that this is their opportunity to provide a response to the allegations and to identify key documents or witnesses which the investigator should consider. It is important for the investigator to establish from the outset an environment of trust, impartiality and openness.

With respect to interviewing, the investigator should keep questions open-ended and simple, allowing the person being interviewed to tell their story. An interview should never be confused with an interrogation.

With respect to style, some investigators prefer to question in chronological order. Others prefer to advance by subject matter. While one style is not necessarily better than another, an effective interview must be organized and should address the “Ws” for each subject block, including:

• What happened?
• When did it happen?
• Where did it happen?
• Who was present?
• How did it happen?
• What was said?
• Why did it happen?

Some common concerns in interviews are with respect to confidentiality and employee participation. Generally speaking, if an employee is instructed by their employer to attend an investigation interview, they are required to participate. A refusal to do so may amount to insubordination and misconduct. If the accused refuses to participate or to answer specific questions, the investigator should inform them that whether they participate or not, the employer will be making a decision based on the information gathered in the investigation, and this is their opportunity to communicate their version of events.

With respect to confidentiality, there is debate over whether anonymous or confidential complaints should be accepted. There are two lines of thinking on this point: 1) an employer should take all complaints seriously and should act on them; or 2) the accused is entitled to know who their accuser is so as to be able to provide a full and complete answer.

I personally believe that confidentiality should not be promised in an investigation, as the most effective investigation is a transparent one. Also, in the event that litigation is started as a result of the investigation or the decisions that flow from it, it is possible that the information may be compelled through the disclosure process.

Trait #6 – Detailed Notes
An often overlooked habit of a highly effective investigation is with respect to note taking. During all interviews, detailed notes must be taken, including the questions being asked and the responses given.

Upon completion of the interview, notes should be reviewed by the investigator and finalized. If time allows, it is advisable that a witness statement be prepared for signature or that the investigator’s notes be transcribed and presented to the interviewee for review and signature. If these notes have been reviewed by the interviewees, it is unlikely that they will argue that they were misunderstood. Also, the best investigation is transparent and verifiable, and if the investigation results or recommendations are ever questioned, the investigator should be able to point to objective interview notes in support of their findings.

Trait #7 – Critical Reporting
Once all the information and interviews have been completed, the investigator should take careful steps to review the results and present their findings. Depending on the mandate of the investigator, they may be asked only to present facts, or to present recommendations based on facts. While decision making authority remains with the company, the investigation report is essential in making an informed decision.

The findings of an investigation can affect productivity, employment relationships, and possibly even someone’s job. As such, the investigator must be critical of the results and confident in their assessment. In reporting, the investigations limitations (including the unavailability of witnesses or documentation) should be identified. If witnesses present differing versions of facts, the investigator should communicate why one version was preferred and why one witness was more credible.

If disciplinary action is being recommended, the investigator should ensure that factual proof of wrongdoing exists. Discipline recommendations should always be proportionate to the findings of misconduct, and an investigator should advise an employer if they lack the specific knowledge or skills to make these recommendations. Without a doubt, discipline taken on the basis of a poor investigation or which is excessive in comparison to the misconduct is ripe for litigation or other forms of administrative grievances.

Conclusions
Depending on context, investigations can be small or large, can be formal or a series of quiet chats, and can be conducted internally or through outside counsel. Regardless of the size and scope of the investigation, it is crucial that it be organized and that the findings are verifiable.

Investigations enhance company transparency, help correct problem behaviour and address interpersonal conflicts. When properly conducted, they can also help limit corporate liability and avoid the costs and inconvenience of litigation.

This article is the second in a series written on workplace investigations. Read Part One or Part Three. Watch HRVoice.org for additional articles coming soon.

David Brown is an employment lawyer with the Kelowna law firm Pushor Mitchell LLP. For more information on workplace investigations and other employment law matters, please contact David at a dbrown@pushormitchell.com.

The merits of any potential claim are always fact dependent. Readers should not take legal action, or should not refrain from taking legal action, in reliance on the information contained in this article and without first obtaining advice from legal counsel in their home jurisdiction.