In Canada, a requirement to conduct a workplace investigation is triggered in case of harassment, sexual harassment or violence.
How to do a workplace investigation?
What then is required of such a workplace investigation? In short, a “reasonable” investigation is required.
What are the requirements of a “reasonable” workplace investigation?
It is impossible to say for certain what is required in each and every workplace investigation. Some cases call out for more while other cases call out for less stringent requirements. However, generally, in our experience, to conduct a reasonable workplace investigation into alleged harassment or other serious matters, an employer should at least ensure that the following (non-exhaustive) requirements are met:
- Consider an interim remedy like suspending the accused or moving the parties away from each other. Indeed, the parties (the complainant and the accused) should not have any further contact until the investigation is complete.
- Assign a neutral investigator who is capable of conducting the investigation in a procedurally fair manner. The investigator can be an insider – there is no law requiring an outside investigator (like a lawyer). The employer should really only hire an outside workplace investigator in the following circumstances:
- in case there is no one who can conduct an unbiased investigation;
- in case there is no one sophisticated enough to handle the investigation;
- in case the matter is too complex even for an inside HR specialist to handle;
- in case it is obvious costly litigation will follow regardless of the outcome of a properly conducted workplace investigation;
- in case it is obvious there is a significantly higher degree of objectivity and or procedural fairness owed to the accused / complainant;
- in case of potential public relations issues; and
- in case the accused / complainant are in senior management or otherwise powerful positions.
- Note: An employer who assigns an inside investigator can still retain outside counsel to provide the investigator training and advice in conducting the investigation (usually at a fraction of the price).
- The investigator should become familiar with the law and process of workplace investigations. The investigator might consider purchasing an HR text on the topic of workplace investigations.
- The investigator should become familiar with the relevant employment laws and the policies and procedures of the employer, especially the policies related to the alleged misconduct (i.e. for example sexual harassment policies).
- The investigator should make a reasonable timeline and prepare a checklist and an investigation plan.
- The investigator should identify the relevant parties and then invite the complainant to draft a full written complaint.
- The investigator should share the complaint with the accused and invite the accused to draft a full written response. Here, the investigator should remind the accused not to retaliate against the complainant or even speak to them.
- The investigator should ask the parties to forward any relevant evidence as an appendix to their written materials.
- The investigator should ask the parties to agree in writing to keep everything confidential.
- The investigator should ask the parties for their list of witnesses.
- The investigator should read the parties’ written materials.
- The investigator should only inform those on a need-to-know basis of the investigation.
- The investigator should choose a safe space office or boardroom hidden from the parties’ department to conduct the investigation. In that regard, the investigator might want to take advantage of a board room away from the relevant office somewhere or at least on a different floor etc.
- The investigator should ask the parties to come to an interview at the chosen office / boardroom etc. on a date that is amenable to them.
- The investigator should pre-prepare a list of questions to ask the parties based on the parties written materials.
- The investigator should conduct an interview of the parties separately.
- The investigator should advise the parties at the interview of the steps to be taken.
- The investigator should take good notes of the answers to the interview questions.
- The investigator should allow the parties to take breaks. Moreover, the investigator should not interview any party for more than eight hours on any given day. If an investigation takes longer than eight hours, another interview day should be scheduled.
- The investigator should not ask leading questions.
- The investigator should not appear to judge the answers or change body language etc. during the interview.
- The investigator should remind the parties after the interview is over of their confidentiality / non-retaliation obligations.
- The investigator should share their notes with the party at the end of the interview and ask them to correct any mistakes and then sign off that the notes are correct. However, the investigator should not provide their notes to the parties after the interview.
- The investigator should consider asking the parties follow-up questions over email or in person again.
- The investigator should do steps 13-24 for the relevant witnesses too.
- The investigator should begin reviewing their notes.
- The investigator should consider the credibility of the parties’ testimony if there is a “he said / he said” issue.
- The investigator should prefer one side of the story over the other where applicable.
- The investigator should take enough time to make a decision and put it to writing. The investigator should edit and review their decision for no mistakes. Note: There are special rules to be followed in making a decision that will not be covered in this blog post.
- The investigator should report their decision to the employer and then to the accused / complainant. In addition to making a finding about the allegations, the investigator might consider making a recommendation to the employer vis-à-vis, for example, disciplinary action or enacting workplace training or new policies etc.
The above-noted requirements are not gospel. Every workplace investigation is different and perfection is not required. Nonetheless, at the very least, a good workplace investigation that avoids legal liability will satisfy the following broad-based criteria:
- Thorough and Careful Consideration
Jeff is a lawyer in Toronto who works for a technology startup. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles. Jeff is interested in Canadian business, technology and law, and this blog is his platform to share his views and tips in those areas.