Having to take part in a workplace investigation is stressful. Naturally, the most stress is experienced by Complainants and Respondents. And, there is also stress for many witnesses (bystanders) because they often do not want to be involved. In some cases, they may feel they are being disloyal to a friend – or they may feel guilty for seeing and hearing things that they didn’t speak up about and wonder if they are now in trouble. Even good people find themselves withholding information for a number of reasons; or giving inaccurate information.
Being mindful of the stress for everyone involved, it is crucial that the investigation process is explained well and that everyone is aware there may be a need for the investigator to return at times seeking clarification on certain points. The problem is; investigating is much like putting together a puzzle and it cannot be completed without all the pieces lining up so we can see the full picture.
It is also important to understand that in a workplace setting, the evidence is predominantly collected by way of statements as opposed to ‘hard evidence’. If the investigator has conversations that discuss emails, memos, notes in a datebook, meetings that occurred; and so on, that information should be followed up on. The other challenge with workplace investigations is that they are rarely involving one or two incidents – and they are rarely events that occurred only a few days or weeks prior. Memories fade over time – each individual will have his or her own perceptions of events – and it is human nature to throw in a few opinions what occurred (or didn’t) and possibly, why. An investigator’s job is to sort through all of the information to move from information to factual evidence.
A competent investigator knows this and realizes that his or her job is to stay true to the A, B, C’s – meaning – “Assume Nothing” – “Believe Nothing” – and “Check Everything.” Going through the A, B, C’s means that there will be time we have to come back and talk to someone again – possibly even more than once.
Here’s the scene:
Let’s assume for a minute that you are told by your Complainant, that the Respondent said some obscenities to her while she was at the coffee machine in the lunch room. She alleges that there were two witnesses in the room that day and she was very humiliated and alleges this is not the first time the Respondent has been disrespectful toward her.
So, you go on to interview the Respondent and the witnesses the Complainant has named.
The Respondent denies that the incident in question happened in the way it was described. His version is that the Complainant called him some names first, and began to put him down for the way he worked on a particular project they did together. He agrees that he then told her to stop being such a “bitch”, and as far as he was concerned, that was the end of it.
The first-hand witnesses confirm that they heard the Respondent use the language he was being accused of but they also tell you that there has been ongoing conflict between the Complainant and Respondent for some time now.
They add that they cannot corroborate whether the specific incident being referred to in the lunch room began with the Complainant making derogatory comments to the Respondent first; they say they have definitely heard the Complainant speak abusively to the Respondent previously and they go on to provide you with two such examples.
Now, do you just say the Complainant’s version was unsubstantiated and this is nothing more than conflict? Or, do you go back to the Complainant with the information you have obtained to determine if she has more information she wants to share with you? To use the puzzle analogy – this piece she has given you doesn’t quite fit – you need to explore that. Remember, assume nothing and check everything. Be honest, how many of you came to the premature conclusion that this was just conflict?
Procedural fairness is about having the right to be heard and the right to be judged impartially.
First – it is about the right to be heard. Therefore, when you hear contradictory information or have evidence that contradicts what you’ve been told previously, you must go back and examine it further – the right to be heard.
Second – it is about the right to be judged impartially. Do not jump to the conclusion that this is a situation of conflict and nothing more. That’s easy to do. Remember, assume nothing; believe nothing and check everything. Your job is to collect the facts to determine if allegations are substantiated on a balance of probabilities. This often requires you to challenge information you’ve been given – and it is only fair that you do this.
As an investigator, you want to make sure you didn’t possibly miss or misunderstand information that was given to you – it means you want to check out any conflicting information so that the process is fair and you are confident in your findings.
“Investigations work is tiring – it takes time to get the pieces together in such a way that you can feel confident in your findings. To be fair and reasonable takes patience and an inquisitive mindset. Investigators must be open to hearing what they are being told but cannot take anything at face value without question.”
There will be times that going back to question people after they have spoken to you will not be well-received. The person you are challenging may feel as if you don’t believe him or her or that you are questioning his or her integrity. It is for this reason that I make the process as clear as I can from the get-go. Be transparent – explain what procedural fairness means – advise those involved that you may need to revisit them with additional questions and that it is just part of the process and ensuring you have the facts. Be honest about what you can and cannot do.
Investigations are more becoming more challenging and frequent. If you are in a position of having to conduct investigations at your workplace, consider training to enhance your skills so your puzzle pieces fit.