Workplace Investigations: Top 10 Pitfalls

Transcription

1 Workplace Investigations: Top 10 Pitfalls Murray Murphy, QC and Chris Stewart Overview 1. Why Investigate 2. Internal or External 3. How to Investigate 4. Evidence 5. Dealing with he said and she said 6. The Final Report 7. Top Ten Pitfalls 8. The Checklist 2 1. Why Investigate Not investigating, or not properly investigating, workplace misconduct may lead to liability Duty under legislation (e.g., human rights, occupational health and safety) New liability? Wal-Mart (2014:OCA) 3 1

2 2. Internal or External Which approach is best? Internal (in-house) for situations within the familiarity and expertise of employer and within the ability of the investigator External investigations typically involve more complex issues and may involve a legal or financial aspect 4 3. How to Investigate The Process of Who, What, Where & When? Who to ask? What to ask? Where to ask? When to ask? 5 4. Evidence Evidence is a Critical Component of Successful Investigation Goal is to gather the best possible evidence With technology get consent Keep entire recording, not just excerpts. 6 2

3 5. he said / she said Contradictory versions of events are often expected (e.g., harassment). Investigators must not only gather evidence, but also make difficult credibility determinations If in doubt Interview each witness again for more detail Determine if a neutral third party can continue 7 6. The Final Report The Decision Only reached after findings of fact and weighing of evidence Should provide recommendations Policy should dictate what is required 8 Weighing Evidence 6. The Final Report Relevance Direct v. circumstantial evidence Credibility Best Evidence Hearsay 9 3

4 6. The Final Report Format Mandate Executive summary Process Identification of main parties Relevant statutory and internal policies outlined Complaint allegation Synopsis of evidence Factual findings Conclusion(s) Appendix containing full witness statements if required Failing to Provide Procedural Fairness to Respondent Don t ambush Provide particulars to respond to allegations (i.e., name of complainant or nature of allegations) Avoid taking the respondent by surprise Not Taking Complaint Seriously Employers cannot ignore problem in hopes it will go away (The right) response must be timely Don t bury your head in the sand 12 4

5 3. Using Untrained Investigators Does the investigator understand the process? Does the investigator have the necessary skill and experience? Will the investigator be seen as credible and unbiased? Get the right person for the job Failing to Follow Policy If a policy is in place, the parties, especially the employer, will be expected to follow it Play by the Rules Using Internal Investigators When External Investigators More Appropriate Does the case involve allegations of a serious nature? Are the issues complex? Do the allegations involve senior management? Consider the hand you are dealt 15 5

6 6. Failing to Remain Neutral A pre-determined investigation is unacceptable There s no way she could have done this He s a constant troublemaker Investigators and the investigation must be objective Don t be quick to judge Failing to Properly Document the Investigation Findings need support Ensure evidence is accurate Signed witness statements are preferable Dot your I s and cross your T s Mishandling Reluctant Complainants When complainant alerts employer to harassment, but asks the employer to: (a) do nothing (b) do something anonymously inviting liability for failing to properly respond Engage other measures if investigation inappropriate Work towards a solution 18 6

7 9. Failing to Apply the Appropriate Standard of Proof Not beyond a reasonable doubt Credibility findings TEST: balance of probabilities Failing to Advise Complainant of Outcome Avoid confusion and uncertainty Share what s been done to address concerns May be confidential but complainant should know Include remedies to prevent future occurrences? The Checklist Damage Control If you have a Policy follow it! Investigation should not proceed as if in a vacuum See Checklist handout and Investigation Tips card 21 7

8 Conclusion Take meaningful steps to investigate workplace misconduct Failure to do so can result in liability Develop policy AND follow it Develop a checklist and timeline Keep written notes and/or records of all information received including photographs, etc. Know when to go outside for help! 22 Questions 23 8