By David M. Brown

Workplace investigations are becoming increasingly common in businesses of all sizes. Sometimes, these investigations are required under law, such as in the case of Occupational Health & Safety concerns or a Workers’ Compensation claim. Other times they are required by contract, as may be the case when dealing with unions.

Even when not legislated, investigations are often a good practice and can shed light on a variety of workplace issues. While there are countless reasons for embarking on an internal investigation, some common issues where they arise can include responses to:

• Privacy complaints;
• Human rights issues (including allegations of discrimination or sexual harassment);
• Employment Standards issues;
• Questions of employee competence or performance;
• Use of company property or theft; or
• Workplace violence.

The Backbone of a Skeleton Search
At its simplest, a workplace investigation is a fact-finding mission. A company is presented with a specific internal problem, but cannot make an informed decision on the issue due to imperfect information. In order to make an appropriate decision, the company needs to effectively and efficiently gather information through interviews with witnesses, reviewing documents and exploring other relevant evidence.

The investigator is tasked with gathering this information and in presenting findings to the company so that a reasonable, educated decision may be made in resolution of the initial problem. While the reasons for investigations are varied, all investigations should have the common objective of problem resolution. Similarly, successful investigations all share a number of similar characteristics.

Objectivity
Objectivity suggests that the person conducting the investigation is without bias, and is capable of examining the circumstances independent of subjective perceptions or feelings. While objectivity is critical to an effective investigation, the perception of objectivity is also important, as a perception of bias can compromise the credibility of the investigation and invite criticism.

Objectivity should permeate all aspects of the investigation. This includes considering which witnesses should be interviewed, what questions should be asked, and even how questions should be asked. For instance, loaded questions and witness interrogations (versus witness interviews) should be avoided.

Many people believe that workplace investigations must be conducted by an outside investigator in order to be objective. This is simply not the case. In many circumstances it is entirely appropriate for a manager, supervisor or the HR function to conduct the investigation. The fact that the investigator may know the parties involved in the investigation does not in itself suggest a bias. However, if facts exist which suggest that a potential investigator’s objectivity may be compromised in some way, including a close friendship or animosity towards one of the parties, another investigator should be considered.

Thoroughness
It goes without saying that an effective workplace investigation must also be thorough. This is not to suggest that every rock must be overturned and that every employee be exhaustively questioned. In performing an investigation, there are practical realities which must also be considered, including time, cost, disrupting business affairs and protecting sensitive information. Recognizing these practicalities, investigators should have the authority to limit the scope of their investigation to interviewing individuals relevant to the investigation and to reviewing related documentation.

However, exercising some discretion over scope should not compromise thoroughness. All relevant facts should be investigated, and all allegations and relevant documentation should be reviewed in a timely manner. While the investigator retains discretion over who is interviewed, witnesses, and in particular the complainant and the respondent, should be asked to identify any potential witnesses and relevant evidence.

Thoroughness also includes detailed notes and a complete and organized investigation file. Investigators should assume that at some point the matter they are investigating will be litigated and that their file may be divulged through the disclosure process. In this event, the investigator’s file will be meticulously critiqued by opposing lawyers so as to attack the legitimacy of the investigation and the foundation of the decisions arising from it. It goes without saying that every important finding during the course of an investigation must be supported by documents or witness evidence.

Process
The investigation process will naturally vary depending on the type of issue being explored. Some processes will be influenced by statute, such as in the case of a workplace accident or staff injury. Some processes will be influenced by collective agreement or employer policies. Some processes will be influenced by common sense and best practices.

In the legal community, there is an active debate over whether a non-unionized employee is entitled to procedural fairness and natural justice during the course of an investigation. The answer may surprise many HR professionals. Under our common law, individual employees working for private organizations have no right to procedural fairness – in other words, there is no inherent right to an investigation, employees do not have a right to be heard and there is not even a right to provide a defence. In fact, unless a statute dictates otherwise, employers can address internal issues as they see fit, which can include ignoring the problem or even terminating the alleged ‘problem employee’ without an investigation.

While not a legal obligation in many circumstances, following proper processes lends integrity to the investigation and credibility to the employer. The information gathered through an effective investigation can also be essential to managing a healthy, dynamic and productive work environment. Also, if there are any decisions flowing from the investigation, including a termination or discipline, ensuring that internal processes were respected will prove essential in advancing a strong defence should the decision ever be challenged.

For this very reason, with the possible exception of very small businesses, companies should have in place an investigation policy. Employees should be aware of the policy so that procedures can be established and expectations can be managed. Employers should of course respect their internal policies to establish goodwill with staff and to lend credibility to the investigation process.

Investigations are increasingly being used by organizations of all sizes because the benefits cannot be ignored. When properly conducted, investigations can build credibility and goodwill between a company and staff. Investigations can halt disruptive activities, avoid the costs and inconvenience of litigation and, in some circumstances, even limit corporate liability.

This article is the first in a series written on workplace investigations. Read Part Two and watch HRVoice.org for additional articles coming soon.

David M. Brown is an employment lawyer with the Kelowna law firm Doak Shirreff LLP. For more information on workplace investigations and other employment law matters, please consult his blog at www.barristerslounge.wordpress.com or contact him at dbrown@doakshirreff.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.