This document discusses practical and ethical issues related to managing internal investigations. It notes that investigations may be required under human rights and health and safety legislation. Proper investigations are important to avoid punitive damages in wrongful dismissal cases. The document outlines best practices for structuring successful investigations, including moving quickly, selecting a qualified investigator, collecting evidence through interviews and documents, and preparing a thorough written report. It cautions that investigations must be conducted fairly and warns of potential pitfalls like bias, hindsight, and selective use of evidence.

1. PRACTICAL &PRACTICAL &
ETHICAL ISSUES INETHICAL ISSUES IN
MANAGINGMANAGING
INTERNALINTERNAL
INVESTIGATIONINVESTIGATION
November 8, 2016

2. • Human Rights Code
• Complaints of harassment / discrimination
• Complaints of reprisal
• Termination or Discipline based on Misconduct
• Occupational Health and Safety Act
• Violence / harassment
• Fatality / critical injury / accident / explosion/ fire
• Occupational illness
• Workplace Safety and Insurance Act
WHY DO YOU HAVE TO INVESTIGATE?
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3. • Human Rights Code
• Investigation triggered when there is an allegation of
conduct that, if believed, could constitute
• Discrimination
• Harassment
• Reprisal
• Failure to investigate is an independent breach of the
Code, even if there is no actual breach of the Code
WHEN DO YOU NEED TO INVESTIGATE?
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4. • Occupational Health and Safety Act (New Changes)
• Investigation must be conducted into incidents
and complaints of workplace harassment where
appropriate in the circumstances.
WHEN DO YOU NEED TO INVESTIGATE?
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5. • When considering termination for cause or
misconduct
• Failure to investigate can expose employer to
additional damages
COMMON LAW DUTY TO INVESTIGATE
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6. • Downham v. County of Lennox & Addington
• Downham a Salvation Army minister
• Assisting a convicted pedophile released from
jail
• Accused of trying to get preferential access to
social housing for pedophile
• Terminated
FAILING TO INVESTIGATE – PUNITIVE DAMAGES
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7. • No one interviewed Downham
• No one advised Downham of the information on
which County was relying
• Relied on distorted and false information
• Generous notice and $100,000 for punitive
conduct
FAILING TO INVESTIGATE – PUNITIVE DAMAGES
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8. Procedural Fairness
• Obligation to ensure investigation is fair
whether investigation is conducted internally
or externally by a third party
• Standard is “reasonable” not “perfect”
FAILING TO CONDUCT A PROPER
INVESTIGATION
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9. 1. Timing
2. Deciding who should investigate
3. Collection of information and evidence
• Interviews
• Collection of documentary and other evidence
1. Preparing the investigation report
BEST PRACTICES TO STRUCTURING A
SUCCESSFUL INVESTIGATION
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10. • Once you receive a complaint or learn of a problem, determine
whether an investigation is required and move quickly to
commence the investigation process
• Move quickly – how quickly?
• There is no set standard for timing of an investigation
• Guidance from Code of Procedure published by Ministry of Labour
• “An investigation must be completed within 90 calendar days or less unless
there are extenuating circumstances warranting a longer investigation (e.g.
more than five witnesses, key witness unavailable due to illness)”
• If there are valid reasons for a delay, document these reasons and
communicate these to the complainant and responding party
TIMING OF INVESTIGATION
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11. • FAIR, QUALIFIED, THOROUGH AND COMPETENT
• Should never be person who reports to someone who is closely
involved (Complainant, Respondent, Witness)
• Qualified (subject matter expertise, training)
• Available (tight timelines)
• Can write and present comprehensively
WHO SHOULD INVESTIGATE?
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12. • Witnesses may be anyone with information relevant to the
conduct in issue/complaint, including:
• Eye-witnesses
• Key witnesses
• Co-workers and supervisors
• Ask Complainant and Respondent for a list of witnesses
that may be aware of the matters at issue in the investigation
COLLECTION OF INFORMATION - IDENTIFY
WITNESSES
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13. • Arrange through person’s manager or Human Resources
• Appropriate time and place
• Interview one person at a time
• Representation
• Determine recording technique
• Reference documents
ARRANGING THE INTERVIEW
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14. • Introductions
• Explain purpose of investigation and why you want to talk
to the person
• Make it very clear that the investigation is confidential
• Explain recording method
• Inform witness additional interview may be required
• Provide your contact info for follow up
CONDUCTING THE INTERVIEW
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15. Do:
• Ask open questions
• Listen and let person tell story
• Confirm understanding of answers
• Ask questions you think you know answer to
• Record questions and answers
• Summary of interview
CONDUCTING THE INTERVIEW
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16. Don’t:
• Ask leading questions
• Interrupt
• Intimidate
• Act suspicious or surprised
• Assume you know what the answer will be
CONDUCTING THE INTERVIEW
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17. Duty of procedural fairness does not require
• Investigator to interview every witness suggested by
Complainant or Respondent
• Investigator to conduct a “perfect” investigation.
Investigator retains a certain degree of discretion on how to
conduct the investigation process (i.e. which questions to ask
witnesses and how best to gather information)
• Respondent be provided with enough information to understand
the allegations against him/her. No requirement to provide full
copies of any reports or statements made against him/her
CONDUCTING FAIR WITNESS INTERVIEWS
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18. Duty of procedural fairness does require:
• Investigator to interview the Complainant(s) and
Respondent(s)
• Allow Respondent full opportunity to respond to
allegations
CONDUCTING FAIR WITNESS INTERVIEWS
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19. • Physical evidence may be collected
• Consider whether to retain an expert to collect
evidence (forensic, technology)
• Do not ignore documentary evidence that is
readily available or can be obtained through a
proper investigation
GATHERING REAL EVIDENCE
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20. Think about your audience
• Who is going to read the report?
• Will the report become evidence in a legal
proceeding? Prepare the report with the intent
that it may be produced in subsequent legal
proceedings
• What is the author’s expertise? Are they
qualified to speak to certain aspects of the
report?
PREPARING THE REPORT
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21. Written report should include:
• Summary of the following:
• steps taken during investigation
• the complaint
• the response to the complaint
• the evidence of witnesses
• findings of fact
• credibility concerns (if any)
PREPARING THE REPORT
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22. Conclusion
• Standard of proof is the “balance of
probabilities”
• Report should include an analysis of how
investigator reached his/her conclusion
Recommended course of action (provided this
is within the scope of investigator’s
expertise/retainer)
PREPARING THE REPORT
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23. • Circulation of investigation report
• Parties involved are entitled to know outcome of the
investigation but no absolute right to copy of
investigation report
• Occupational Health and Safety Act requires that
workers involved in a harassment investigation be
provided with a written summary of the investigation
results (not the full investigation report)
• Circulation of full investigation report should be limited
to final decision-makers
INVESTIGATION REPORT
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24. • Just because a lawyer investigated does not
mean that the report is privileged
• Issue: What is the purpose or reason for report:
fact-finding or legal advice?
• Scope of retainer
• Mandate and actual functions of investigator
PRIVILEGE
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25. Establishing and maintaining privilege
• Circulation and Communication
• E-mails – always copy counsel
• DO NOT forward communications to third
parties
• Properly frame the retainer and be clear about
the scope of the investigation and mandate of
the investigator
ASSERTING PRIVILEGE
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26. • Hindsight
• Leads to misinterpretation and invalid weighting of
evidence
• However, hindsight can be a useful tool in learning from an
event
• Bias
• Picking an investigator that will be impartial
• Using the investigation as a means to “build a case”
PITFALLS AND TRAPS
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27. • Other common pitfalls found in reports
• Dismissing or ignoring inconvenient information and assumptions
• Not considering reliability of evidence or mitigating factors
• Selective referencing of evidence collected
• Forming opinions or conclusions outside of expertise
• Sharing draft reports prematurely
PITFALLS AND TRAPS
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28. • Don’t bury your head in the sand if a complaint is brought to your
attention
• Don’t rush to judgement. Conduct a fair, reasonable and thorough
investigation
• Choose the right person to conduct the investigation - fair, qualified
and competent
• Ensure that the investigation report is a well written report that is
thorough and sets out not only the facts but the analysis of how the
investigator arrived at the conclusion
• Collect documentary evidence, if available, to ensure a thorough
investigation. Retain experts to assist to collect data when necessary.
RECOMMENDATIONS
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29. gowlingwlg.com
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