In our last blog, we explored the circumstances in which employers should consider engaging an external workplace investigator and the benefits that can be expected when an external investigator is engaged (including expertise, confidentiality, and impartiality).
In this week’s post, we will explore what employers can expect from the workplace investigator during the investigation stage. This is the second part of a three-part series on workplace investigations. Stay tuned for our third post, which will explore the “post-investigation” stage.
Workplace investigators are trained professionals who follow a systematic and thorough process. The exact process engaged by a workplace investigator may vary depending on the nature of the allegations made by a complainant and the applicable internal workplace policies; however, at a high level, employers should expect the process to include the following five stages:
- Initial Assessment
- Document Review
- Analysis of Evidence
- Report Preparation
The workplace investigator will begin by reviewing the complaint and assessing the scope of the investigation, i.e., developing an “investigation plan.”
This plan will include an outline of the necessary steps and resources to complete the investigation. For example, it will include preparing a preliminary witness list, identifying sources of evidence to be collected, and setting an expected timeframe for the investigation.
Having identified the sources of the evidence to be collected, the investigator will then begin their “document review.” Document review is a very important part of an investigation, as the documentary evidence will often speak for itself and will convey on its own a clear and informative narrative of events.
There is no uniform or exhaustive list of documentary evidence that an investigator will look at. Each investigation will depend on its own facts and the issues that are engaged.
Types of documentary evidence may include witness statements, emails or texts that are relevant to the complaint, contracts, agreements, receipts, phone records, and attendance records. In addition, an investigator will often review relevant workplace rules and policies (e.g., anti-harassment policies).
It is important to note that this is merely the investigator’s initial review of the documentary evidence. As the investigation progresses, and particularly as the investigator begins to conduct witness interviews, additional documentary evidence may come to light. So long as it is relevant to the complaint being investigated, this additional documentary evidence will be collected and reviewed by the investigator.
Next, the investigator will begin conducting interviews. Interviews are usually conducted in a location that is both neutral and private. Post-pandemic, it is now common for interviews to be conducted virtually. An investigator will provide participants with any accommodations that are necessary to ensure their ability to engage fully and fairly (for example, an investigator may arrange for an interpreter when needed). Each participant will be interviewed separately and privately and will be asked to keep the contents of their interview strictly confidential.
Typically, the investigator will want to interview the complainant and the respondent to the complaint. However, the investigator is certainly not restricted to interviewing only these two parties. The investigator may ask to interview other members of the workplace, witnesses to a particular incident, and/or anyone else who may be able to provide relevant insight into the issues being investigated.
Analysis of Evidence
An important part of an investigator’s role is fact-finding. The investigator will carefully analyze the entirety of the evidence collected in order to determine whether the complaint that has been made is substantiated. The investigator will consider the reliability and consistency of the evidence and the weight that each piece of evidence should be accorded. For example, evidence that has been corroborated will be given more weight than evidence that is merely based on rumours or gossip.
As part of their fact-finding role, the investigator will assess the credibility of each person that has been interviewed. In doing so, the investigator will examine the “story” presented by each witness, whether their story has changed throughout the investigation, whether the witness was forthright in their evidence, and whether their story is supported by documentary evidence or corroborated by other witnesses.
Once all the evidence has been collected and analyzed, the investigator will prepare a comprehensive report of their findings (the “investigation report”).
The report will typically include the following:
- a summary of the incident or complaint that is being investigated,
- the investigator’s mandate,
- the individuals involved,
- the sources of evidence considered,
- uncontested facts,
- evidence and factual findings,
- the investigator’s credibility findings and determinations,
- applicable legislation and policies,
- the investigator’s analysis and conclusions
- issues that could not be resolved (if applicable).
Depending on their mandate, the investigator may also make recommendations to the employer about the specific complaint that has been investigated or about systemic issues at large that may have contributed to the complaint.
The preparation of the report will typically mark the end of the investigator’s role. Using their expertise and systemic process, workplace investigators will ensure that serious and complex workplace complaints are investigated professionally and thoroughly.
Stay tuned for our next blog post, which will explore the “post-investigation” stage. In the meantime, if you have any questions or would like to engage us, please reach out.