What is a Workplace Investigation?
When misunderstandings, conflicts and other non-productive behaviors occur in the workplace and become disruptive to effective working relationships often collaborative approaches such as informal conversations, facilitation of team building activities, negotiation, conflict coaching and mediation – can be beneficial solutions. However, when complaints of workplace harassment, bullying behavior or violence are made, employers have a greater obligation to follow a more structured approach to ensure a thorough investigation of the matter is undertaken.
If informal or alternative methods of resolution are not successful, an investigation is launched. An internal or external investigator:
- Receives a specific mandate for the investigation developed by the employer and reviews the documentation detailing the complaint.
- Conducts interviews with those he or she believes have relevant information. Typically these interviews are electronically recorded, to both ensure accuracy and eliminate disputes over what was or was not said.
- Reviews all documents related to the complaint, as well as relevant company policies.
- Makes findings of fact including determining if the allegations of harassment or violence, as defined by policy, took place.
- Makes recommendations for further action. This will only be done if the mandate of the investigator includes the request to make recommendations.
The employer must then decide whether or not to adopt the recommendations of the investigator or what sort of disciplinary measures will be taken, which can include but is not limited to: unpaid leave, mandatory training, reorganizing the work teams all the way to termination.
The investigator may be called as a witness if the respondent (the employee against whom allegations are made) challenges a disciplinary action through arbitration or litigation. Ensuring conversations are recorded and procedures are followed exactingly is essential to avoid having the process declared invalid by an arbitrator or Court should the matter find its way to such a forum.
Why Commence an Investigation?
- It may be required by law!
The Occupational Health and Safety Act (OSHA) mandates that Ontario employers with five or more employees implement a workplace harassment and violence policy and a program to ensure the policy is used effectively. That policy must contain provisions for employees to report incidents and for the investigation of those complaints.
Some examples of when you might have to commence an investigation include:
- An employee engages in a long-term pattern of behaviour, such as harassment or threats. Investigations can be a step in progressive discipline, providing evidence and cause for dismissal.
- An employee alleges that his/her supervisor is harassing him/her. An investigation can help uncover whether that is a substantiated claim or if the employee simply misinterpreted legitimate performance related feedback, which is a common occurrence.
- Situations involving complaints of violence, fraud, or theft.
- Alternative methods of resolution, such as conflict coaching and mediation, have failed to resolve the issue.
Who Commences an Investigation?
Quite often a Human Resources representative will initiate an internal investigation or recommend to senior management that an external investigative representative is preferred, or likely to be more effective. In smaller organizations it could be the business owner, the CEO or Executive Director or the Chair of the Board who initiates an investigation.
Although a member of management team may be effective in conducting the investigation a lack of training and experience may impede the investigation and have negative consequences such as perceptions of unfairness, errors in recording keeping or failure to collect all of the pertinent information. An inexperienced investigator may overlook a number of factors that could potentially shift the trajectory of the findings. For example,
If Employee X has been found guilty of harassment in the past, for instance, it can be easy to infer guilt in the present. Without sufficient evidence to prove wrongdoing in the current situation, this assumption can invalidate the investigation and leave the organization open to further legal action.
An internal investigator may bring bias – even unintentionally – into the process. Even if he or she is neutral, it is difficult to maintain the appearance of impartiality. The appearance of impartiality is as important as actual impartiality. The workforce may not accept the legitimacy of the process and the findings may later be challenged on grounds of bias and it just may convince a Judge.
Any complaints involving violence or threats of violence should be reported to the police as they are the appropriate authority to conduct investigations of a criminal nature.. However, this does not automatically relieve the employer from doing its’ own investigation to ensure the safety of all employees in the workplace.
The goal of an investigation is to, as respond as quickly as possible to gather objective and factual information to assess what has actually occurred and to determine what else needs to be done, appropriate remedies, and corrective actions.
Note: At times, such as when the stakes or workplace tensions are high, hiring an external and experienced investigator promotes an objective process – in reality and in the eyes of the employees and possible future decision makers such as judges and arbitrators. In this way it safeguards the rights of the complainant, respondent, and the organization as a whole. If companies decide to handle the matter internally, it is advisable that they consult with an experienced investigator for guidance.
Who are Our Investigators?