How can a workplace investigation go wrong?

By Norman MacInnes

A workplace investigation can go wrong in many ways, say Michelle Bird, Megan Forward, and Andrea Lowes, Senior Workplace Investigators at Certitude Workplace Investigations.

Clear mandate

A workplace investigation can go wrong at the outset if the investigator does not have a clear understanding of the mandate, say Bird, Forward, and Lowes. You must know what it is you’re being asked to investigate. The allegations must not be vague or overbroad. Moreover, fairness requires that the allegations be clear and sufficiently detailed so that the respondent can respond to them.

An investigation can go wrong at the outset if the allegations are not properly framed. The alleged misconduct must violate a policy or a law, say the Senior Investigators.

Even if the allegations are true, if they are not in violation of a policy or a legislative provision, “it doesn’t really get you anywhere,” says Bird. “You’re just investigating for no reason.”

In some cases, each individual allegation of misconduct may not on its face violate policy or legislation, but the allegations taken as a whole may do so, says Lowes. A single comment on its own may not amount to harassment or discrimination, but it may be taken into account as part of an escalating course of conduct.

A mandate can be amended if the investigator learns during the investigative process that there are additional allegations that need to be addressed or if another incident occurs during the investigation, says Lowes.

But Forward cautions that an investigation can also go wrong if the investigator unilaterally decides to investigate additional allegations raised by the complainant that were not in the original complaint.

 “Say you are an investigator given a mandate to investigate a particular complaint made by X against Y — to make findings of fact and conduct an analysis based on the client’s internal policy. You interview X as a first step, and X provides a slew of additional allegations not captured in their initial complaint.”

“As an investigator,” says Forward, “you cannot simply decide to start investigating the additional allegations” for several reasons:

• An expanded investigation can have resource implications for the client.
• You do not know if those allegations have already been dealt with or are in the process of being dealt with.
• The client may want to deal with the additional allegations in another forum.
• It can affect your impartiality or the perception of your impartiality if you are seen to be unilaterally expanding the scope of the investigation. It can start to look like a “fishing expedition.”

“If a complainant tells me that they have a lot of additional allegations about the respondent that were not covered by their initial complaint, my best practice is to tell the complainant to raise them directly with the client” says Forward. “This allows the client to assess the allegations and their impact on my mandate without unnecessarily exposing me to a lot of negative information about the respondent, which could affect my impartiality.

“If this approach is not possible,” says Forward, “I will share the new allegations with the client for guidance on whether they affect my mandate.

Of course, fairness requires that both parties be kept abreast of any updates to the mandate, says Forward.

Failure to plan

An investigation can go wrong if you don’t take the time to plan it at the outset, says Bird. You must think about what information you need and plan how you are going to get it. Which witnesses do you need to interview and in which order? What documents do you need?

An investigation can go wrong if you don’t write your report as you go along, says Bird. By writing your report while you are conducting the investigation, “you can see what important pieces of information are missing, and this can really help keep you on track.”

The report that you write as you conduct the investigation doesn’t need to be in its final wording. Writing a point form outline of what the parties and each witness told you about each allegation and putting it into your report format as you go along will help you to spot any missing information, says Bird. “The worst thing is to get to the very end of investigation and realize there’s a huge gap of information from a witness or a party, and then have to go back. That can open up a whole can of worms.”

Writing the report as you go along also supports fairness to the parties, notes Bird. By reviewing your report, you might realize that you haven’t asked one of the parties about a key piece of information. For example, you might not have given the complainant a chance to address the respondent’s response to a particular allegation.

Communications with client

An investigation can go wrong if you fail to communicate regularly with the client throughout the investigation, says Bird.

A client may have established specific norms or policies that you need to be aware of. “For example, I had a client who was very much against interviewing witnesses from outside the organization. Thankfully, we were in regular contact, so when I said the complainant mentioned this witness, the client said, ‘No — absolutely not, we never interview witnesses outside the workplace.’

 “If we hadn’t been talking. I would have gone ahead and interviewed the witness, the client would have been mad, the union would have been mad, and we would have had a sticky situation. While you may sometimes have to take steps your client may not be happy with as a matter of procedural fairness, it’s important to do it in a purposeful and transparent way.”

Constantly updating your client about the steps that you’re taking and the timelines – making sure the client is fully aware where you are in the investigation — will help keep the investigation on track, says Bird.

An investigation can also go wrong if you fail to regularly communicate with the complainant and respondent, says Forward. Fairness requires that you treat the parties equally, provide them with the same updates, and provide them with the opportunity to review any documents and comment on them.

Credibility assessments

An investigation can go wrong if the credibility assessments are flawed.

“A sloppy or poorly articulated credibility assessment can be the downfall of an otherwise flawless investigation process,” says Forward. “Many findings turn on an investigator’s assessment of credibility.”

“It is not enough to just say ‘I didn’t believe him or her.’ You have to be able to say what it was about their evidence and the manner in which they delivered that evidence that made you find the witness not credible,” Forward says.

 “You have to know what you can and cannot consider. We know that things like body language and eye contact are not reliable indicators of truthfulness. We know that trauma can impact a person’s recall and ability to deliver evidence in a linear way.”

“A well-articulated credibility assessment can also help an investigator to check their own bias,” Forward observes. “If they are not able to say why they prefer one party’s evidence over another’s other than ‘a gut feeling,’ that should give you pause. Are there unconscious biases at play?”

How long is too long?

An investigation can go wrong if it takes too long.

“Fairness, thoroughness, and timeliness are of paramount importance to an investigation,” says Lowes. “It’s important that the investigation be done in as efficient and timely manner as possible. If people are going to continue to work together, it’s important that the investigation not go on too long. You don’t want the issues to fester or more concerns to arise while the investigation is proceeding.”

Delays may be caused by things beyond the investigator’s control, such as vacations and leaves, notes Lowes. For example, a party or witness may be on a leave and not required by policy to participate in the investigation while on leave. You always need to balance competing considerations.

So how long is too long?

“My rule is I don’t ever want to be the one holding up the investigation,” says Bird. “I try to move it to the next stage as quickly as possible when the ball is in my court because I know that other people are going to hold it up. Gaps in scheduling witness interviews and delays in getting documents will often prolong the investigation.”

Bird notes that the Ontario Ministry of Labour’s code of practice says workplace investigations should be completed within 90 days. (Other provinces may have different guidelines.)

But this guideline is flexible, says Bird, and is intended primarily for employers conducting internal investigations, who have the advantage of unlimited access to their employees. Their reports generally tend to be shorter (one or two pages) – “here’s what happened and here’s how we resolved it.”

Different considerations apply to an investigation by an external investigator, Bird says.

“Employers usually won’t retain an external investigator unless there’s some complication, such as a lot of allegations, a lot of people involved, or allegations involving someone higher up in the organization, for example, a VP or CEO,” says Bird. “These investigations are more vulnerable to being challenged through litigation and must therefore be a lot more thorough and a lot more detailed – and therefore take a lot longer.”

Consequently, there may be valid reasons for these investigations to take longer than 90 days. But you need to provide a detailed breakdown of the steps that you took and the reasons why the investigation took as long as it did in your report, says Bird.

There’s “always a tension between making the investigation as thorough as possible and making it timely,” says Bird. “You have to balance those considerations. You could investigate forever. There’s always someone else to talk to. But you can’t have your investigation go on for two years while you try to gather every possible piece of information.”

Norman MacInnes is an Ontario lawyer, writer and editor with 30 years of legal writing experience.