It is no secret that legislation has changed the need to conduct investigations when complaints of bullying and harassment or serious misconduct arise.
It’s also no secret that many cases find their way into arousing media attention because of inappropriate or incomplete action being taken that have resulted in litigation and oftentimes, have not ended well for an employer. While there is not always a legal requirement to investigate allegations of misconduct, it is certainly in an employer’s best interest to do so. Especially if the allegations are serious enough that terminations or serious discipline are being considered for the accused.
Turning a blind eye is no longer an option and those who conduct the investigations should certainly be equipped with the skills, knowledge and ability to manage them effectively. To do an investigation haphazardly can be perilous in today’s work world.
As more managers, human resources personnel, safety personnel and supervisors are exposed to complaints (and they will be because human rights and personal harassment complaints are definitely on the rise); there will be more gaps in knowledge and experience in conducting investigations.
As someone who worked in the human resources field for over 15 years, I had occasion to conduct workplace investigations many times for a variety of reasons. What I can say with certainty is that now; as someone who predominantly conducts workplace investigations as a licenced investigator, I realize the investigative mistakes I made while in human resources.
Mistakes weren’t made because I did not take complaints seriously, but more because I really did not know how to manage the processes and interview folks as well as I could have. I did not appreciate the amount of time required to thoroughly investigate and I certainly did not think about due process in the same way I do now and I did not plan accordingly.
The purpose of the investigation is to find the facts of a situation – not to find evidence to support assumptions and premature conclusions. An unsupported conclusion reached through a flawed investigation may expose an innocent employee to severe undeserved consequences and, ultimately, may expose the employer to significant damages when its defence unravels at trial. There was a recent case (Volchoff vs. Wright Auto Sales Ltd.) out of Ontario that illustrates how employers can sometimes jump to conclusions and the investigation is no longer objective because of often strong internal pressure to reach a particular result. (First Reference Talks, January 2016.) Vernon vs. BC Liquor Distribution is another case well worth reviewing and it clearly demonstrates the danger of trying to find evidence to support allegations rather than facts.
My partner and I provide workplace investigations training and we have found that it is mostly human resources practitioners that attend the training. That’s fabulous! It is definitely a skill that I believe H.R. practitioners must be able to put into their respective tool boxes.
The only problem here is that we know they are not the only ones who conduct investigations and who require this training and these skills. Managers are often tasked with conducting investigations – business owners – supervisors and of course, your safety officers. Not all investigations are the same and not all interviews are the same. Most policies recommend speaking to a supervisor or manager first, so if that individual does not know what he or she needs to document or what questions to ask, information could be lost.
When we conduct the training, the multitude of questions we receive from participants, clearly demonstrate the need for the training.
Some examples of the questions we receive are:
- How do you determine credibility in cases of a ‘he said/she said’ – and ultimately – a conclusion must be reached. How do you decide?
- Is an investigation is required if a complainant says he or she does not want an investigation conducted?
- Are there certain instances in which an investigation can be avoided?
- What about an anonymous complaint? How do you investigate that?
- Do you have to remove anyone from the worksite?
- Should witnesses be made aware of any outcomes?
- What type of questions and information should we be asking of the complainant?
- Does a complaint have to be in writing for an investigation to be done?
- When do we tell the respondent (the accused) and when?
- Does it matter what order interviews are in?
- What type of questions should we ask and how?
- Can we force someone to talk to us and what can we do if they refuse?
- Other information came up through the investigation; do we include that in the findings?
- What if the complaint is really trivial or it’s learned that it was false?
- Are we allowed to search lockers, purses or other property on site?
It is increasingly more important that proper and fair investigations are conducted and that those conducting them understand the importance of the planning; the type of interview questions to ask; what other evidence there is over and above the interviews and how privacy laws may impact the collection of evidence, etc.
The best part of the training is usually about the interviewing techniques themselves. Not surprisingly, this is also frequently found to be the area that requires the most training because interviewing is not as simple as it seems and objectivity is paramount. Investigators must learn how to manage their biases and perceptions as well as when to consider using another investigator to conduct interviews. This is of course; another reason having more than just your human resources personnel trained can be of benefit.
Even though in some cases the ability to investigate can be difficult (reluctant complainants, anonymous complaints, no witnesses) there is still a duty to protect workers and maintain a safe and healthy work environment so workplace investigations training may well be something to budget for in 2016.