Canadian HR Reporter

www.hrreporter.com 13 unless there's some other rule that has been broken." Best practices for using virtual effectively To help facilitate successful and effective investigations, HR should look at their workplace policies and see if they can or should be updated to contemplate virtual investigations, says Lucifora. "That might mean having tools like a Zoom account in the event that something arises that an employer can respond to quickly [and] ensuring the investigator has training in workplace investigations and that they are neutral, so they're not involved in the incidents that underlie the complaint." For investigations to work virtually, a number of items have to be well thought out in advance in order to provide the best possible outcome, she says. "Confidentiality is always important to an investigation, but I think it's that much more important virtually, and the reason why that exists is the investigator can't control the setting," says Lucifora. "They don't know the witness, for example, signing into a Zoom meeting; you don't have control over where or not available by video; you can't see how someone's hands are positioned, their legs, etc., and those normally give an indication if someone's actually nervous answering something, if they're being open," he says. "There's definitely a lot of limitations on how investigations can be conducted now and that's definitely skewed by the fact that you can't necessarily see people in person as much." There's also the possibility that virtual investigations could be challenged in a court or arbitration process, says Achkar. "Investigations used to and always have been pushed back on by the unhappy party and now this is just an additional chance for someone to voice a concern about these things — that's one additional argument they could use, whether they think it's unfair." Considering the amount of virtual hearings being done by courts across the country, this argument might not hold water, says Lapointe. "If that is possible, and if that is acceptable and advisable in a judicial context, I certainly don't see how it will not be in an investigative context, how that witness is participating. It's important to deal with some of those issues upfront, requesting that the employee or the witness be in a quiet, private room." And for those witnesses who might not be completely comfortable using technology such as video chat software, some leeway should be granted to make the process run more smoothly, she says. " There's also potentially some technological issues you may have to overcome; for example, ensuring that your witness understands how to use the technology [and] ensuring that the witness has the appropriate technology because not all workplaces are technologically advanced, not all employees are technologically advanced." Despite the virtual setup, the same legal efforts have to be accomplished regardless of the setting, says Lapointe. "I typically ask witnesses to sign a very simple confidentiality statement when we start a meeting stating that they will not disclose the content of our conversation. I typically just give them the paper copies, [but] now, when you're conducting a virtual investigation, "Employers are realizing the resources allocated to those travels just to be face to face with a witness are not necessary." Vanessa Lapointe, Borden Ladner Gervais typically I send it as a PDF or an email and ask them to reply that they acknowledge." Overall, some benefits might yet be gained by investigating virtually, he says, provided there's a good internet connection, appropriate sound and "the witnesses can be even more comfortable when they're behind their own computer than in a lawyer's office [where] they're sitting in an uncomfortable chair." CHRR

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