Workplace investigations are not only a best practice when addressing a respectful workplace and/or harassment investigation, but are also required by occupational health and safety legislation in many jurisdictions. Here are ten helpful tips when conducting workplace investigations:
- Keep an open mind. Do not do or say anything which would appear to favour one side or the other.
- Decide on whether you need to place the respondent on a leave of absence with pay, or whether you need to modify duties/schedules so the complainant and respondent are not working together during the investigation. If substantiated, would the allegations in the complaint lead to a termination for cause? If a termination is possible, then the respondent should be immediately placed on a paid leave of absence pending the results of an investigation. If a termination is unlikely, but the allegations are still serious, consider whether the individuals need to be reassigned so they are not working together during the investigation.
- Consider whether a fact-finding investigation will actually resolve the substance of the complaint. Is the complaint about a particular person's conduct? If so, an investigation is likely appropriate. Or, is the complaint a disguise for some other problem (for example, a governance issue or about a lack of clarity in job roles)? Is the complaint more in the nature of interpersonal conflict, which would be better addressed through mediation?
- Who decides whether a matter will go to a formal investigation? Does the policy contemplate this being a decision of the complainant or of management? What if the complainant disagrees with the decision? Ensure your policy is clear on who makes the decision.
- Decide whether the investigation will be internal or external. If the complaint involves multiple complainants and/or the respondent is in a senior role within the organization, then consider whether an external investigator will be more appropriate. In order to obtain accurate cost estimates, ensure that you can advise the investigator how many witnesses are anticipated.
- What will be investigated? Determine the mandate of the investigator and ensure the parties to the investigation clearly understand the mandate. Is the mandate of the investigator to only consider the original allegation? What if other complainants come forward during the investigation? Will the investigator decide whether or not the policy was breached? Will the investigator make recommendations? If so, will the mandate for recommendations include discipline, training, changes to the policy or procedures?
- Ensure you understand the investigator's process and this is communicated to the parties. Will they be given copies of all statements? Who will be provided with a copy of the investigation report?
- Keep time limits in mind. Does the policy have a time limit for complaints? Are there any applicable collective agreements which contain time limits for investigation and discipline?
- Where will the investigation take place? Is there appropriate confidentiality at the workplace?
- Whatever your policy and procedures state, follow them. Have audit policies/procedures for compliance. Maintain and report data so that you can be aware of trends. The laws are changing in this area, with many jurisdictions including harassment in their occupational health and safety legislation. Ensure your policy is reviewed and updated regularly to ensure compliance with all legislative requirements.
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.