The purpose of an investigation, at its core, is simply to find out what happened. It gives an organization the factual basis to make a decision, from how to reorganize a department to whether to dismiss an employee for just cause. An investigation might by triggered by an employee complaint, by an anonymous report, or simply by a management desire to change workplace culture. In any case, the decision to be made will only be as good as the facts on which it’s based.
Conducting an effective workplace investigation isn’t just useful – in many circumstances, it’s legally required. Add to this the potential legal liability that can arise if the investigation isn’t done properly, and it’s apparent that spending time to do it right pays off.
As part of ensuring a safe workplace, BC employers are required by WorkSafe BC to have a bullying and harassment policy, including procedures for reporting and investigating complaints. Similar requirements are on the way for federally-regulated employers under Bill C-65, which will make changes to the “Occupational Health and Safety” requirements of the Canada Labour Code.
Possibly of greater consequence, employers who rely on flawed investigations can be hit with significant damages awards by the courts. Recent notable examples include an award of $35,000 against the BC Liquor Distribution Branch, when it relied on an investigation that was “flawed from beginning to end” (Vernon v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133); an award of $110,000 in punitive damages when Wal-Mart failed to enforce its harassment policies and take an employee’s complaints seriously (Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419); and an award of $25,000 for aggravated damages where the employer did not undertake a proper investigation into allegations of theft (Ram v. The Michael Lacombe Group Inc., 2017 BCSC 212).
With this in mind, we have put together a summary of six strategies employers can use to improve the quality and reliability of investigations.
1. Follow Your Policy
As with any policy, it’s not enough to simply set out an investigation procedure on the books; following through is essential. For one thing, this ensures that the complainant and respondent are being treated impartially, consistent with others in similar situations. The converse is also true – if an employer takes short-cuts or jumps to conclusions without going through the process required by policy, this allows a judge or arbitrator to infer that the employer was unfairly targeting an employee, which could result in a significant damages award (such as in the Wal-Mart decision mentioned above).
2. Don’t Delay
The sooner you begin the investigation, the better chance you have at getting to the core of what happened. Not only can memories fade quickly, but if employees gossip about events, they may (deliberately or inadvertently) change their story. The more time that passes, the more likely it is that emails can be deleted, documents can be lost, or the scene of the incident can change. Delay in dealing with a complaint can also cause disruption in the workplace, especially where there is interpersonal tension between a complainant and respondent. If it has been necessary to place a complainant or respondent on a paid leave pending the outcome of an investigation, there may also be a direct monetary cost to a delay.
3. Choose the Right Investigator
To ensure the investigation is fair, you need the right investigator. Employers need to make sure the investigator can act independently and without bias, which means it is essential to look at any pre-existing relationships between the investigator, complainant, respondent and witnesses. In many cases, an internal investigator meets this standard, and can address most straightforward complaints. However, it may be necessary to retain an external investigator where a neutral internal investigator is not available, or where the allegations are complex or serious.
4. Document Everything!
It’s important to remember that the information you obtain during an investigation can be crucial to defend an employer’s actions at a trial or hearing. This means that documentation is key. Ensure that the investigator makes full and accurate notes of what witnesses say, word-for-word where possible. You should also make sure you preserve all “real” evidence, such as emails, photographs, texts, and other documents, and keep track of how and when you obtained them.
5. Take Confidentiality Seriously
The need to preserve confidentiality applies not just to a complainant and respondent, but to all witnesses interviewed by the investigator. Anyone involved in the investigation needs to be warned to respect the sensitivity of the process. At the same time, it’s not possible to promise anonymity to a complainant. To be fair to the respondent, details have to be shared with the respondent and witnesses to explore the allegations. In short, information should only be shared on a “need to know” basis, and other strictly protected.
6. Come to a Conclusion, and Act on It
At the end of the investigation, it’s important to make factual findings and address the issues at stake. Was there harassment (or not)? Was there another breach of policy? Was the complaint substantiated by evidence? This will likely require findings of credibility, weighing both oral and documentary evidence. Skipping straight to action without a clear factual conclusion can lead to problems down the road, especially if you have to justify your decisions in court. Conversely, making a finding of wrongdoing and then failing to take appropriate action can also lead to liability, such as when an employer doesn’t take steps to prevent an escalation of harassment or bullying. Finally, it is an important component of a fair process to let the complainant and respondent know the outcome of the investigation and to ensure that any necessary remedial action is carried out.
While this is clearly not an exhaustive list of steps to take to ensure a fair and effective investigation, it addresses many of the fundamental errors that have led to problems for employers at trial. Taking steps to ensure a proper investigation not only reduces the risk of liability, but creates a solid basis to make sound decisions.