Canadian HR Reporter

CANADIAN HR REPORTER MARCH 2018 24 EMPLOYMENT LAW to conduct an investigation or report the outcome of the investigation (for example, a workplace harassment complaint filed under provincial occupational health and safety legislation)? • Is it appropriate for the complainant or subject of the complaint to remain in the workplace during the investigation? • Is it appropriate to engage a third party expert to undertake or assist in the investigation? For example, a forensic accountant may be required if the investigation involves allegations of financial impropriety. • Is the nature of the investigation one over which the employer may want to assert privilege? e answer may impact whether the investigation will be handled internally or by an external lawyer. If the investigation is conducted for the purpose of providing legal advice to the organization, or in contemplation of litigation, there may be an ability to claim privilege over the report. ere is no such ability to do so if the investigator or report writer is not a lawyer. e investigation team Who will investigate is an important factor to be considered carefully and strategically. An internal investigator may have the advantage of speed and lower cost, but not the skills, experience or time available to carry out a thorough investigation. An internal investigator may also not be appropriate if the sub- ject of the investigation is a senior member of the organization. In that case, it may be advisable to hire an external lawyer to con- duct the investigation. Similarly, as noted above, if it may be impor- tant to assert privilege over the in- vestigation, it must be conducted by a lawyer for the purposes of providing legal advice. When conducting an inves- tigation internally, an organi- zation may want to consider having two individuals work to- gether as an investigation team: One to ask questions and one to take detailed notes (though this is not always necessary or logis- tically feasible). It is also important the inves- tigation team has a strong work- ing knowledge of the applicable workplace policies, practices, codes of conduct or law alleged to have been breached, as well as the law as it relates to workplace investigations — another reason why it may be advisable to hire an external lawyer to conduct the investigation. Relevant documents Relevant documents, including electronic files, should be secured and reviewed by the investigation team as soon as possible. This includes practices, policies, procedures or codes of conduct, all of which will help shape the scope of the investigation and identify individuals who will need to be interviewed. Documents and electronic re- cords created in connection with the investigation should be kept confidential and preserved in a secure location, including any notes taken during the interview process. Preservation of notes is a neces- sary and important step, particu- larly if the investigation may be challenged through litigation. Conducting interviews e objective of the interview is to elicit and record as much detail about the complaint or incident as possible, including: date, time, location, witnesses, what hap- pened prior, during and after the incident, whether the same or a similar incident was previously reported and any prior action taken. As such, every individual with knowledge of the matters giving rise to the investigation should be interviewed, and be treated with fairness and impartiality. Whenever possible, open- ended questions should be used to allow the interviewee to tell the story in his own words. When the investigation arises out of a complaint, the complainant will typically be interviewed first. is enables the investigator to elicit additional information about the complaint and how the complainant would like to see the issues resolved. ereafter the person subject to the complaint and any other wit- nesses should be interviewed, one at a time. When interviewing an employ- ee alleged to have engaged in mis- conduct, the interviewer should identify the specific allegation and give the employee an oppor- tunity to provide an explanation. In some cases, it may be advisable to provide the employee with the allegations in writing, in advance, to ensure she clearly understands the allegations and has the oppor- tunity to respond. If additional information comes to light during the investigation, it may be necessary to conduct fol- lowup interviews. Documenting interviews Careful, accurate and succinct notes should be taken at each in- terview. ese notes may have to be produced in subsequent litiga- tion. Notes should record: • who was interviewed and who was present • where and when the meeting occurred • what was discussed (in as much detail as possible). It is very important the notes contain no editorial comments or opinions. Notes must be as close as possible to a verbatim record of questions asked and answered. Should the investigation result in litigation, the notes will likely be produced. Notes containing editorial commentary could significantly undermine the credibility of the investigation and any subsequent disciplinary action. Assess, evaluate and report Having gathered the relevant evidence, the investigation team will assess, evaluate and prepare a written report of findings and conclusions. e report should: • summarize the complaint or incident being investigated • summarize the relevant evidence obtained from the documents reviewed and individuals interviewed • identify and evaluate any inconsistencies in the evidence • assess credibility and weigh competing evidence to reach a factual conclusion, including whether there has been any breach of the law or policy • explain the reasons for conclusions reached. Communicating the outcome In most cases, the report of the investigation should be kept con- fidential and only provided to the individual(s) charged with making the final decision regarding reme- dial action or discipline. However, a summary of the findings (not the report itself ) should be communicated to the individuals directly impacted, which will generally be the com- plainant and individual alleged to have committed misconduct. If the investigation involves a complaint of workplace harass- ment in Ontario, the complainant and the employee alleged to have engaged in harassment (if he is a worker) must be provided with a written outline of the conclusions reached in the investigation and any discipline imposed. With every case, care must be taken when drafting the com- munications to ensure an appro- priate balance is struck between transparency and responsiveness and exposing the organization to unforeseen, additional legal liability. Concluding thoughts Conducting a credible workplace investigation is fundamentally about process. ere are many steps to consider from the re- ceipt of the complaint to the final report and communication. A workplace investigation therefore presents both a challenge and an opportunity. e challenge is maintaining impartiality and the appearance of impartiality throughout. Even small details like the location where interviews are conducted can impact the impartiality. For this reason, we recommend de- veloping a detailed investigation plan in consultation with your legal counsel. e opportunity is one of ef- fective and proactive manage- ment of workplace issues. Con- ducting a thorough, fair, and ef- fective workplace investigation is key to a successful management strategy. A proper investigation is also an excellent framework from which to present a case to an adjudicator, and can serve as a helpful tool in limiting your organization's po- tential liability. Both lawyers at Sherrard Kuzz in To- ronto, Lisa Bolton can be reached at lbolton@sherrardkuzz.com or (416) 603-6958, and Gerald Griffiths can be reached at ggriffiths@sherrardkuzz. com or (416) 217-2234. Sherrard Kuzz is one of Canada's leading employ- ment and labour law firms, represent- ing employers. For more information, visit www.sherrardkuzz.com. INVESTIGATIONS < pg. 5 Proper investigation fundamentally about process Largest Selection of Experiential Assessments PAPER OR ONLINE VERSION www.olresources.ca 888-889-2184 TURBO POWER YOUR TRAINING PROGRAMS Training and Development Materials of Canada It is important the investigation team has a strong working knowledge of the applicable workplace policies, practices, codes of conduct and law.

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