Smithson: Workplace investigations done the right way

One of the tasks for which many managers are unprepared is the workplace investigation.

One of the tasks for which many managers are unprepared is the workplace investigation.

The guidelines for performing this function effectively are straightforward enough but aren’t necessarily always obvious.

The need for a workplace investigation can arise out of a wide range of circumstances.

Most often, I’d say, the need is triggered by a complaint by one employee against another of some kind of harassment or by the employer’s perception that an employee has engaged in misconduct.

So, what to do? The first step is, undoubtedly, to determine whether the situation even warrants a formal investigation.

If some lesser response would be sufficient in the circumstances, launching an investigation may achieve nothing more than occupying valuable resources.

But, perhaps it makes sense to err on the side of caution—unless you’re certain an investigation isn’t required, conduct one.

Next, determine who should conduct the investigation. Does the designated person have any direct or indirect involvement in the circumstances, or any kind of personal relationship with, or bias in relation to, the complainant or another accused employee?

In many instances, it makes sense to bring in an outsider to conduct the investigation—this can resolve internal conflict issues and can allow for more objective results.

Before initiating the investigation, consider whether interim measures are required.

Is it necessary to alter any existing workplace rules or reporting relationships or to get an employee out of the workplace altogether while the investigation proceeds?

As for the investigation itself, some simple rules can be useful. Start by being serious, but not hysterical, about the situation. Don’t “fire first, ask questions later.”

Get going on the investigation as soon as possible after the complaint is raised.

Delay causes many problems, not the least of which is the detrimental impact of the passage of time on witnesses’ memory of key events.

Don’t think this applies to you or your staff?  Try remembering what you had for breakfast last Friday morning.

Before the investigation gets underway, be sure to consult your policy manual to determine whether it imposes an investigation procedure.

If so, you would be well advised to follow them. Obtain complaints in writing whenever possible.

If necessary, go back to the complainant for more details so that you have the full story, from his or her perspective, in hand.

When conducting investigation meetings, plan on having two employer representatives present.

One will do the talking and one will make (accurate) notes of what is said.

Personally, I prefer to receive written (and signed and dated) statements from all witnesses—this precludes anyone playing the “I never said that!” game.

When questioning witnesses, ask every “who,” “where,” “when,” “what,” “why,” and “how” question you can think of.

Being complete will surely advance the objective of coming to the correct conclusion in the end.

Confidentiality is a tricky subject when it relates to workplace complaints.

The tendency is to assure the complainant of total confidentiality but, practically speaking, that usually cannot be achieved.

So, advise the parties —particularly the complainant—that confidentiality can be maintained only to the point at which it does not hinder the investigation.

Ensure that you have the complainant’s permission to proceed with the investigation even if doing so means disclosing his or her personal information.

Divulge sensitive information only on a strict “need to know” basis, and caution employees and other witnesses about maintaining strict confidentiality.

Ultimately, you’ll need to render a decision.

Weighing the “he said, she said” of the situation will be challenging, but it must be done.

Generally speaking, apply a “balance of probabilities” standard to your determinations, taking everything into account—is it more likely than not that the alleged circumstances occurred?

If you’d rather not have sole responsibility for this decision, defer to an outside consultant to give his or her findings and recommendations.

There is, of course, a lot more to be said about procedures for conducting investigations.  However, these basic tips should get you headed down the right path.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. This subject matter is provided for general informational purposes only and is not intended as legal advice.

 

www.smithsonlaw.ca

 

 

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