Canadian Employment Law Today - sample

Canadian HR Reporter, 2019 the identity of any witnesses that should be interviewed. After meeting with the complainant, the best practice is to distill the allegations into a complaint document and to provide it to the respondent in advance of their in- terview. e hallmark of procedural fair- ness in this context is for the respondent to know the allegations again him or her, and to have the opportunity to respond. Accordingly, it is imperative that the re- spondent have all allegations put to her for comment. e respondent is typically in- terviewed after the complainant and after they have had a reasonable opportunity to formulate a response. e investigator will then want to meet with all witnesses with relevant informa- tion. After meeting with the witnesses, the investigator should consider if a follow-up with either party is necessary to fill in any gaps or to gather a more complete under- standing of the facts. Bear in mind that preparation is key and, where possible, the investigator should ap- prise themselves of all relevant facts and in- formation to prepare questions in advance of conducting an interview. Although it may not be practicable to al- ways conduct interviews face-to-face, the investigator's findings will always involve an assessment of credibility. By conduct- ing interviews in person, investigators are better suited to assess credibility by observing the parties, determining the appropriate questions, and testing com- peting or alternate narratives. A proper assessment of credibility is the foundation to an effective investigation. Building the paper trail A competent investigator keeps a well- documented paper trail of each step of the investigation. is includes establishing an investigation plan, taking detailed notes of all interviews, providing the witnesses the opportunity to review their notes to ensure accuracy, and having them sign off to con- firm the same. e investigator will want to preserve all documentary evidence obtained dur- ing the investigation to be reviewed while drafting the report and to support the ul- timate findings and process, should either be challenged. Preparing the report In most cases, investigators are tasked with preparing a written report of their find- ings. e report sets out whether each al- legation has been proven on the balance of probabilities, or, put another way, whether it is more likely than not that each allega- tion is true. In making this determination, the written investigation report should outline: the summary of the complaint or allegations; the investigative authority and process; an assessment of credibility; relevant contextual information; legal and policy framework; a summary of the evi- dence and findings; and the investigator's conclusions or recommendations, where part of the investigation's scope. Deciding who gets what Given the importance of maintaining confidentiality, and in some cases privi- lege, typically only the persons tasked with making a final decision on discipline flow- ing from an investigation, if any, should be provided with the investigation report. It is generally sufficient if the complainant and respondent are provided with a sum- mary of the report; however, the employer should also keep any legal obligations re- garding mandatory disclosure in mind — such as with workplace harassment — and consider if any other individuals should be informed of the results. An effective workplace investigation can limit an employer's exposure to li- abilities, damages and reputational harm. Although the above highlights some best practices that employers should keep it in mind when conducting workplace in- vestigations, it is always best to seek inde- pendent legal advice with respect to every specific situation. May 1, 2019 | Canadian Employment Law Today ABOUT THE AUTHOR Nathaniel Marshall Nathaniel Marshall is an associate lawyer with Turnpenney Milne LLP, practicing in all areas of employment and labour law. For more information, visit turnpenneymilne.ca. CREDIT: BY STOATPHOTO/SHUTTERSTOCK

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