What employers need to know about workplace investigations
Whether a workplace complaint is related to employee misconduct, workplace harassment, bullying, discrimination or violence, employers should ensure they have a consistent policy to provide guidance when a workplace investigation becomes necessary.
Employers faced with a formal or informal complaint from an employee regarding inappropriate conduct in the workplace need to ensure they react quickly and fairly.
A clearly defined, efficient and thorough investigation will not only make the affected employee feel respected and safe in the workplace, but it will assist the employer in properly identifying the facts, interviewing the appropriate witnesses, and addressing the alleged conduct.
Further, swift investigations will assist with carrying out the appropriate discipline, if required, as well as in preventing inappropriate conduct in the future.
When conducting a workplace investigation, employers should keep the following tips in mind:
1. A clearly defined mandate and scope of the investigation
Shortly after receiving a complaint in the workplace, human resources personnel should meet with the complainant to learn more about the allegations being made. After meeting with the complainant, the employer should identify whether a formal investigation is required or whether the complaint can be handled informally, such as by mediating between the parties. In determining whether to retain a third party to investigate the complaint, employers should consider the nature and seriousness of the allegations, the number of parties involved (and against whom within the employer the complaint is made), and whether they have the time and resources to properly investigate.
Where it is determined that a third party investigator is required, the employer should provide the investigator with a clear mandate that defines the parameters of the investigation. The employer should identify what conduct is being investigated, any witnesses that have already been identified, and whether they want the investigator to assess whether the alleged conduct breaches certain workplace policies. The scope of an investigation can change as more information is gathered. Flexibility is required, as the scope of the investigation may be broadened or narrowed as a result.
As a first step, the investigator should look to the employer’s respectful workplace policies to see if they include a specific investigation procedure or requirements regarding the content of the report. This will enable the investigator to determine the next steps as needed within those parameters.
2. Maintaining confidentiality
Confidentiality during the investigation process is integral. All parties, including the complainant, respondent, and witnesses, should be reminded of their obligation not to disclose or discuss the nature of the complaint, or their participation in the investigation, to others. The parties should be provided with the opportunity to have a support person or union representative (if applicable), present with them during the interview, but such support persons should also be reminded to keep the complaint and investigation confidential.
The employer and any third party investigator will need to exercise discretion, balancing the complainant’s right to confidentiality with the respondent’s right to procedural fairness. While a complainant might want to keep their name confidential during the investigation, principles of procedural fairness require that the respondent have enough information about the complaint to allow them to fully understand and properly respond to the allegations being made against them. In some instances, it may be necessary to disclose names or information about complainants or witnesses.
3. Identifying witnesses
Throughout the investigation process, witnesses may be identified who have knowledge pertinent to the facts in dispute. The employer or third party investigator will need to determine whether it is necessary to interview the witness, keeping in mind each party’s right to confidentiality and procedural fairness. For example, if a complainant identifies a co-worker who was present while the alleged conduct took place, and can support the complainant’s version of events, this witness should be interviewed. However, in interviewing the witness, the witness should only be provided as much information as necessary to conduct the interview.
4. Next steps
Once all of the parties have been interviewed and any relevant documents reviewed, the investigator should prepare a report setting out their findings. Depending on the scope of the investigation, the report generally should include a summary of the alleged conduct, highlights of the information gained during interviews, a conclusion as to whether the impugned conduct did occur, and a decision regarding whether workplace policies were breached. Upon receipt of the report, the employer will need to determine next steps, including whether disciplinary action is appropriate.
Fillmore Riley LLP’s Employment & Labour Law Practice
We provide practical legal advice to our clients on all matters related to workplace investigations, employment and labour law. Because every situation is unique, we carefully assess legal risks and obligations and arrive at the best course of action to help you achieve the desired results. For more information, or if you have any questions, please contact a member of the Fillmore Riley Employment & Labour practice.