When should a Workplace Investigation (WI) be conducted?
In Ontario, Canada, workplace investigations are mandated by the Occupational Health and Safety Act where there is workplace harassment or sexual harassment or workplace violence. Most provinces and territories have similar legislation. Other situations when a WI should be conducted include, establishing workplace misconduct before terminating employment for cause, establishing a human rights claim, determining whether a workplace policy was breached or determining whether a workplace is “poisoned.”
Who should conduct a workplace investigation?
If a complaint is isolated to a single incident or does not involve great volumes of documents and witnesses, it may be appropriate for an employee of the workplace to conduct the WI. Personally, I am not in favor of internal workplace investigations no matter the complexity. The demands placed upon a workplace investigator are the same as the demands and expectations placed on Judges. Investigators needs to know how to question a witness which is a skill that takes most lawyers years to perfect. Investigators must be able to review all documents and determine credibility of witnesses, also a skill. Investigators must also be able to produce a cogent report that discusses the complaint, the allegations, the evidence, credibility of the witnesses, relevant law, and a conclusion. Further, and perhaps most importantly, an investigation must be done in a way that guarantees fairness and due process and is not influenced by bias or the appearance of bias. Query whether an investigation conducted by someone within the organization has the appearance of fairness and lack of bias.
If I am retained to conduct a workplace investigation, can I also represent a party to the investigation?
No. If I am conducting a workplace investigation, I am strictly neutral and will not provide any advice to either the complainant, the respondent, the witnesses or the employer or lawyer who may have retained me. This will ensure my objectivity and an investigation that is free from influence and bias or the appearance of bias.
Who will receive a copy of a WI report?
Every investigator needs to ask the retaining lawyer or company if there are policies that govern the disclosure of the report. In my view, the report should indicate that it is “Privileged and Confidential”, and the investigator cannot be called as a witness to any legal proceeding related to the events investigated. This added protection further ensures fairness and lack of bias or influence. The issue of how much information should be disclosed to the complainant and respondent, is a matter of any governing legislation, workplace policies and the sensitivity of any personal information contained in the report, including the identity of any witnesses other than the complainant and respondent.
To discuss your needs related to a Workplace Investigation, please call me at 905-257-7714.