Workplace investigations are inevitable for most organizations
and employers face significant pressure to conduct them properly.
A flawed investigation, besides compromising the information
a decision-maker will need, invites a range of risks. From a
legal perspective, the courts scrutinize the conduct of an
investigation; where an employer has improperly disciplined a
worker on unsubstantiated grounds, a finding of wrongful dismissal
may follow. Further, as a number of recent cases demonstrate,
if a court finds that a poorly conducted investigation contributed
to the wrongful dismissal, it may hand down additional sanction in
the form of aggravated damages.
What are the characteristics of a proper investigation?
The answer depends on the industry, interests, and
composition of a company, but what follows are some of the general
guidelines all employers should adhere to.
Preparation is key. Consider:
Who the investigator(s) will be.
Internal investigators may be better appraised of a
company's circumstances while external investigators, on the
other hand, may be seen as more impartial. In some cases, the
nature of the misconduct may require investigators with specialized
skills such as forensic computing or workplace counselling.
The scope and purpose of the
investigation. Recent, isolated incidents may
warrant a more focused outlook. On the other hand, systemic,
long-term issues may require the employer to contact former and
The evidence needed. Preserving the
evidence may require the employer to secure emails and computer
data before an employee has an opportunity to delete them. At
the same time, the employer must be aware not to overreach into an
employee's private property and affairs.
Interim action. A complainant may need
an immediate response such as temporary relocation or leave to
accommodate his/her situation. On the other hand, the working
conditions of the subject of the investigation should not be
altered; a material change in his/her working conditions may
constitute a form of dismissal.
During the Investigation:
Interviews should involve enough witnesses to make the
investigation effective, and no more. All parties involved
should be on a "need to know" basis.
During interviews, assure the witness that his/her testimony
will be kept as confidential as possible. It is good practice
to have two interviewers present so one person can accurately
record the answers to the questions his/her partner asked.
Confirm the accuracy of the notes made by reviewing them with
the witness after the interview.
It is important that the employee(s) under investigation should
have an opportunity to fully respond to allegations made.
Until then, the employer should refrain from taking any
actions that would suggest the result has already been
After the Investigation:
Review all of the evidence and ask: is it more likely
than not that the purported event occurred? If the
evidence is inconclusive, additional interviews or information
gathering may be necessary.
Create a final report which includes a summary of the
complaint, steps followed, information obtained, and conclusion on
If the accusation is substantiated, an appropriate response
should address the parties involved, not only disciplining the
subject of the complaint – in a proportional manner –
but addressing and mitigating the harm done to the
If the incident is part of a larger problem, changes in company
policy or additional education/training may be
Conducting a proper investigation will not prevent future
problems in the workplace from arising, but it will help ensure
that the employer is in the right position to make the right
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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