Workplace investigations are an essential part of human resources management. They are designed to gather facts and evidence related to a complaint or an alleged violation of company policy or law within a workplace. When done correctly, workplace investigations can help employers create a safe and respectful work environment and protect themselves from legal liability. Conducting a workplace investigation requires careful planning, execution, and reporting. It is essential to follow the right steps to ensure that the investigation is conducted in a fair, thorough, and impartial manner. This article provides a comprehensive analysis of the key factors that impact workplace investigations and explores the challenges associated with different approaches.
The initial assessment is the first step in conducting a workplace investigation. It involves assessing the complaint or allegation to determine whether an investigation is warranted. This step is critical to avoid wasting time and resources investigating claims that are not credible. For instance, if some of the allegations in the complaint are not disputed by the respondent, it might reduce the number of witnesses to evidence to shed light on that allegation.
An effective initial assessment involves reviewing the complaint, interviewing the complainant, and determining the scope of the investigation. The investigator should also consider any potential conflicts of interest, biases, or other factors that may impact the investigation's credibility.
Once the initial assessment is completed, the investigator creates an investigation plan that outlines the scope of the investigation, identifies potential witnesses and evidence, and sets a timeline for completing the investigation. The planning phase is crucial to ensure that the investigation is thorough and comprehensive.
In this phase, the investigator should consider the nature and seriousness of the allegations, the number of witnesses, and the amount of evidence to be collected. The investigator should also consider the need for confidentiality and how to handle any potential retaliation against complainants or witnesses. Typically, protection against retaliation should be clearly discouraged in the employer's policy on discrimination and harassment.
Gathering evidence is a critical part of the investigation process. The investigator must collect relevant and admissible evidence to support their findings. Evidence may include documents, physical evidence, and witness statements.
In this phase, the investigator must consider the types of evidence needed to support the allegations, where to obtain the evidence, and how to preserve it. The investigator should also consider the reliability and credibility of the evidence and how to authenticate it. Gathering evidence is intimately related to the investigator's ability to ask the right questions (and even rephrase the same questions) so that the information sought is obtained.
After gathering the evidence, the investigator analyzes it to determine its relevance as well as the credibility of all the parties involved. The investigator must evaluate the evidence objectively and consider any conflicting or inconsistent evidence.
In this phase, the investigator should consider the weight and importance of the evidence, how it supports or refutes the allegations, and whether it is sufficient to establish a violation of company policy or law.
Based on the evidence gathered, the investigator makes findings of fact regarding the alleged violation. The investigator should provide a clear and concise statement of the findings, including whether a violation occurred, the severity of the violation, and who was responsible.
In this phase, the investigator should consider the standard of proof required to establish a violation, whether the findings are supported by the evidence, and the potential impact of the findings on the employer and the employees involved.
The investigator prepares a report that summarizes the investigation's findings and recommendations for corrective action. The report should be written clearly and concisely and should include any supporting evidence and documentation.
In this phase, the investigator should consider the intended audience for the report, the level of detail required, and the potential consequences of the findings and recommendations. The investigator should also consider any legal requirements for reporting and any potential liability associated with the report's content. It is important to keep in mind that reports could be challenged and be the subject of further scrutiny. As such, they should be written in a way to sustain adjudication or arbitration proceedings that may ensue.
The employer takes appropriate action based on the investigator's findings, such as disciplinary action or implementing changes to policies or procedures. The employer must take prompt and effective action to address the alleged violation and prevent it from occurring in the future.
In this phase, the employer should consider the severity of the violation, the impact on the workplace and employees, and the potential legal consequences
A competent workplace investigator can be a great asset to any HR department or to labour and employment lawyers. For more information on how we can be of assistance, visit our investigation page or send us an email at investigation@nungisalaw.ca.