By Taryn Mackie

Perry Mason was invariably lucky.  He won his cases because the prosecutor failed to investigate.  There was always a “surprise witness” or an irrefutable alibi.  All of this, of course, would have been readily discoverable to the prosecutor had a proper investigation been conducted at the outset.  We can learn a lot from Perry Mason (and from the always unsuccessful prosecutor): a properly conducted investigation can make all the difference.  While an appropriate investigation may not have made for good TV, it makes for sound labour relations practice.  The quality of an employer’s investigation will determine whether an employer’s decision is upheld or overturned. 

Although there is no cookie-cutter approach to conducting an investigation, as the circumstances will determine what kind of investigation is required, there are certain best practices that are universal to all investigations.  These include the following:

• The goal of any investigation is to discover the true facts.  Accordingly, you should examine any allegations that may support disciplining or dismissing an employee as thoroughly as possible.  You should be especially vigilant where the allegations would be devastating to an employee’s reputation.  You should interview all witnesses, favourable or otherwise, and follow-up with witnesses where necessary.  Keep an open mind:  discipline may not turn out to be warranted in the circumstances.
• You should prepare your questions for witnesses and for the employee in advance of your interviews with them.  You should also be prepared to deviate from the “script” depending upon the answers that you receive.  You should not provide the employee or a witness with a copy of your questions in advance of the interview—in doing so, you will lose the opportunity to obtain a candid answer.
• Throughout the investigation, you should deal fairly with the employee and follow all applicable internal policies.  If a collective agreement contains a right to shop steward representation during an investigatory interview, you should make sure that such representation is offered to the employee.  
• You should give the employee the opportunity to respond to the information that you obtain in the course of the investigation upon which you intend to rely in making your decision.  Generally speaking, the investigatory interview with the employee should be conducted at a later stage in the investigation once all the potential witnesses have been questioned so that you can question the employee about all of the facts that you have uncovered. The danger of fabrication at a subsequent court or arbitration proceeding is reduced if the employer has obtained an explanation by the employee.  The cases are replete with examples of believable explanations for employee misconduct which have been elaborately concocted during the lengthy time period between discipline and the ultimate hearing into the matter.  Where, however, an employee has been interviewed and later tells a different story at the hearing, the employer will have the necessary means to discredit the employee and limit or eliminate an adverse outcome.
• You should follow-up on any explanations that the employee provides to you by questioning others. 
• In a unionized context, you should not discipline an employee for failing to answer questions posed in an investigatory interview, save for exceptional circumstances.  The situation is less clear in a non-unionized context.  Where an employee refuses to respond, you should advise the employee that you will base your decision on the facts as you know them.  If the employee provides an explanation at a subsequent hearing that is ultimately accepted by the decision-maker, you should argue that the employee should be denied any relief because he or she failed to mitigate their losses by providing an explanation when first questioned.
• You should create and maintain an investigatory file that keeps records of all interviews conducted in the course of the investigation and includes duplicate copies of all documents obtained during the investigation.  You should separate privileged documentation (e.g. communications seeking or providing legal advice) from non-privileged documentations.
• You should keep a historical record of all disciplinary measures involving the employee and any incidents relating to written warnings or suspensions given to the employee.  That will form the context against which you will base, in part, your disciplinary response, if any.

While the desire to discipline or terminate someone immediately without a full investigation may be quite strong—emotions often run high in these situations — the importance of a comprehensive investigation cannot be overstated.  While you may feel some discomfort with the confrontational nature of the process, the exercise is critical to upholding your decision at the end of the day.  Although possession of the facts results in a less entertaining Perry Mason episode, it will lead to better decisions and better adjudicative results for you in your workplace.

Taryn Mackie is presenting Fundamentals of Effective Workplace Investigations in Surrey on January 20 and in Victoria on January 27. For more information on these and other professional development opportunities, please refer to BC HRMA’s online calendar.

Taryn Mackie is an Associate at Bull, Housser & Tupper Labour and Employment Law Group and was called to the bar in February 2006. As a member of the firm’s Labour & Employment Group, Taryn advises clients on a variety of issues relating to labour relations, collective bargaining, human rights, workers’ compensation, wrongful dismissals, unjust dismissals, and employment standards.