By Taryn Mackie and TJ Schmaltz

CSI’s Gil Grissom is one of television’s most celebrated detectives — time and time again, he cracks the case!  Fortunately, you don’t have to be on CSI to be a super sleuth in the workplace.  Having the “know how” to conduct investigations effectively means you too can crack any workplace case, or, at the very least, reach an outcome that does not leave your company vulnerable to further loss and litigation. 

Although there is no cookie-cutter approach to conducting a workplace investigation, there are “investigative best practices”.  Here are a few examples: 

• Discover All Of The Relevant Facts: Consider any allegations that may support disciplining or dismissing an employee as thoroughly as possible. Interview all witnesses, favourable or otherwise, and follow-up where necessary.
• Start and End With An Open Mind:  Suspicion and allegations will not always lead to evidence or facts that support discipline. It is critical that an employer can show they arrived at a reasonable conclusion after weighing all of the relevant information.  Remember, it is up to the employer to justify any disciplinary action. While you might be convinced by a gut feeling, could you convince a judge or an arbitrator?
• Scouts Got It Right – “Always Be Prepared”:  Just like heading into the woods without a map, interviewing a witness without a clear sense of the issues being investigated will get you to the same spot: lost, confused and frustrated.  Make sure you go into every interview with a good sense of where you are going — a roadmap to help you collect the relevant facts and information.
• Stay Within The Lines:  If your company has policies that comment on how investigations will be conducted, then ensure you adhere to them. If a collective agreement contains a right to shop steward representation during an investigatory interview, make sure that such representation is offered to the employee. Failure to stay within the lines of employer policies or collective agreements could effectively void any discipline you might wish to impose.
• There Are Always Two Sides To Every Story:  Even when you think you know what happened, it is critical to allow employees under investigation to tell their side of the story. This usually happens towards the end of your investigation to ensure they have an opportunity to respond to the allegations and the facts.  Ensuring the employer’s investigation is fair and balanced is important and lends credibility to the investigative process.
• Document, Document, Document:  Create and maintain an investigatory file that keeps records of all interviews conducted and includes duplicate copies of all documents obtained during the investigation. Remember, the employer must meet the burden of proof in any disciplinary case.
• Context IS Everything:  Make sure you consider all mitigating and aggravating circumstances before deciding on discipline. Consider, for instance, an individual’s employment history (including whether they have previously been disciplined and their length of service), whether they were honest and forthright during the investigation, whether their behaviour was provoked by others and whether there might be an underlying medical condition or disability. The employer’s ultimate decision coming out of an investigation must be based not only on a rock solid investigation but the context surrounding the conduct.

These, and other, best practices are often intuitive but equally underestimated and overlooked. Ensuring that your investigation will stand up to the intense scrutiny by a court, an arbitrator, a tribunal or even other employees of your organization is the sign of an investigation well-done — the sign of a super sleuth! 

Interested in hearing more about how to conduct effective workplace investigations from a legal and senior HR practitioner perspective?  Come see Taryn Mackie and TJ Schmaltz’s workshop, How to be a Super Sleuth: Workplace Investigationsat the HRMA Conference + Tradeshow in Vancouver on Wednesday, May 1, 2013.

Taryn Mackie is a partner with the labour and employment group at Bull, Housser & Tupper LLP, a leading Canadian law firm, and TJ Schmaltz is a senior HR practitioner who leads the Human Resources and Payroll Services Division with the District of West Vancouver.  TJ is also an instructor in the Business School with BCIT.