By Andrew Schafer

Employee investigations can have important and far-reaching positive or negative implications for employers, depending on how they are carried out. A properly conducted workplace investigation can shield employers from legal liability and also boost employee morale by demonstrating a commitment to addressing problems consistently. On the other hand, an employer who conducts improper investigations leaves itself vulnerable to negative consequences such as exposure to lawsuits or potential public relations nightmares.

Fortunately, conducting an effective employee investigation does not have to be difficult. Here are five tips for success:

1.   Act immediately, but not hastily.
Investigations should be conducted as soon as possible after receiving a complaint or witnessing misconduct. Any delays in commencing the investigation can suggest that the employer condones the conduct in question or that they do not consider the conduct to be very serious. In addition, as more time passes, memories will fade and evidence may be lost.

However, it is important not to rush investigations, but rather to approach them with a well thought-out plan. In particular, interview planning is key. Employers should prepare interview questions in advance which probe all areas of the incident: the who, what, where, why, when and how. In a unionized workplace, consider whether the union needs to be notified and when.

2. Pick the right investigator for the job.
Many factors should be considered when deciding who should conduct the investigation, including the seriousness of the allegations, the identity of the alleged transgressor and cost. While an HR professional might be best suited to handle most complaints, it may be prudent to bring in an independent consultant to carry out the investigation in certain circumstances. In all cases, the investigator should be experienced, objective, independent and knowledgeable about the issue(s) being investigated.

3. Be thorough.
Be thorough in all aspects of the investigation. This can be achieved by abiding by these simple policies:

• Have two people from the company side conduct the interview and designate one of those individuals as a note taker;
• Interview every witness connected to the alleged misconduct, whether they are expected to be favourable or unfavourable to the employee alleging misconduct;
• Caution all interviewees about the requirements of confidentiality and of not interfering with the investigation;
• Keep detailed notes of all interviews to ensure you have an accurate and reliable record of each interview;
• Have each witness sign a written summary of their evidence to acknowledge its accuracy; and
• Take the steps necessary to preserve key evidence, especially evidence that is likely to be lost, modified or deleted in the ordinary course of business (e.g. voice-mail messages, surveillance footage, etc.).

4. Remain impartial.
Impartiality is one of the most crucial elements of conducting fair and proper employee investigations. First and foremost, the investigator must not be biased, pre-judge the issue or have a personal stake in the outcome. It is good practice to have another person in the room during the interview (aside from the interviewer and interviewee) to corroborate what is being said. It is also important to always give the employee under investigation an opportunity to respond to the information upon which you are basing your decision. Failure to hear all sides of the story may taint the whole investigation. Accordingly, no decision should be made until all of the relevant facts have been considered.

5. Comply with company policies.
Investigations must be done in accordance with company policies and, in the union context, collective agreements. These agreements and policies may impose time limits on investigations, require union involvement or provide other representational rights, or create other stipulations. The employer should ensure that the policy is reviewed and followed during the investigation, especially the requirements relating to confidentiality and privacy. Details of investigations should only be shared with those who “need to know” the reasons for disciplinary action. “Need to know” means employees who need the information in order to discharge their own employee duties. Sharing information with people who do not “need to know,” may unnecessarily expose employers to litigation.

Although each investigation will bring its own challenges, following a clear process, being mindful of the points set out above and using the appropriate expert and legal resources as needed will help ensure that employee investigations are accurate, fair and provide the best positive results to all parties involved.

Andrew Schafer is presenting the Investigating Misconduct and Handling with Cause Terminations workshop in Vancouver on April 17. For more information on this and other professional development opportunities, please visit cphrbc.ca.

Andrew Schafer, LLP/S.E.N.C.R.L., s.r.l. is a partner with Norton Rose Fulbright Canada and member of CPHR BC & Yukon.