Why Conduct an Investigation? • Discriminatory harassment • Workplace harassment • Workplace violence (including threats) • Other misconduct (e.g., theft) • Other interpersonal problems

1. CONDUCTING A WORKPLACE INVESTIGATIO
Chuck Tahirali, Senior HR Consultant
(416) 216-5901
chuck@stlawyers.ca

2. Why Conduct an Investigation?
• Discriminatory harassment
• Workplace harassment
• Workplace violence (including threats)
• Other misconduct (e.g., theft)
• Other interpersonal problems

3. Why Conduct an Investigation?
• Part of an effective defence against legal claims
• Legally required component of workplace violence
and harassment policies/programs
• My be penalized specifically for failure to investigate
• Failure to investigate may undermine confidence in
employer and/or lead to poisoned work
environment

4. Internal v. External Investigators
• Proportionate to:
- Seriousness or complexity of allegations/situation
- Need for objectivity
- Identity of those alleged to be involved
- Potential for legal action
- Own lawyer or other lawyer/investigator?

5. Basic Characteristics of a Good Investigation
• Commences in a timely manner
• Appropriate steps taken pending outcome
(administrative suspensions?)
• Interview everyone referred to in complaint, everyone
the subject of investigation wishes you to speak to and
anyone else with relevant knowledge
• Provide subject of investigation with full and fair
opportunity to respond

6. Basic Characteristics of a Good Investigation
• Properly documented
• Make findings based on credibility
• Proper communication with all parties concerned
• Best efforts to maintain confidentiality
• Appropriate remedial action

7. Myths and Misconceptions
• Can’t proceed if complainant explicitly instructs you
not to proceed or if complainant does not cooperate
• Complaint must be in writing (ideally, yes, but not
necessary in informal investigation)
• Investigation must be conducted quickly
• Keep names of complainants secret

8. Myths and Misconceptions
• Confidentiality will be maintained
• “Where there’s smoke, there’s fire”
• One and done
• Good investigator = fictional detective
• Termination of the alleged perpetrator is the
expected or inevitable outcome

9. To Suspend or Not?
• Fact of investigation may upset complainant as much as
experience underlying complaint
• Fact of investigation may upset alleged perpetrator as much
as fact of complaint
• Interviews may be tainted by efforts of complainant(s) and/or
alleged perpetrator(s) to influence what they say
• Depending on work and work relationships, may not be
practical to limit interactions between parties

10. Reasons for Suspension
• To remove alleged victim (e.g., of harassment) from
workplace to avoid further distress and/or
interference with investigation.
• Depending on circumstances, failure to do so could
precipitate medical absence from work and/or
damages for mental distress
• May attempt to influence other interviewees.

11. Reasons for Suspension
• To remove alleged perpetrator (e.g., of harassment)
from workplace to avoid further interaction with
alleged victim and/or interference with investigation.
• Depending on circumstances, failure to do so could
lead to additional damages if victim subjected to
further harassment
• May attempt to influence other interviewees.

12. Arguments Against Suspension
• Suspensions with pay may be expensive
• Even if paid, suspension may be perceived as a penalty
• If everyone allegedly involved is not suspended, could lead to
allegations of bias or discriminatory treatment
• Limited or more difficult access to key individuals during
course of investigation
• May pose additional difficulties (e.g., home- or work-related)
for those suspended

13. Why Not Unpaid Suspension?
• Suspension without pay = traditional disciplinary
penalty.
• lleged perpetrator “innocent until proven guilty.”
• Alleged victim who complains in good faith should
not be subjected to penalty.

14. Why Not Unpaid Suspension?
• Becomes onerous unless for short period of time
• Blurs distinction between disciplinary and non-
disciplinary processes
• For non-union employees, unpaid suspension may
be a ‘constructive dismissal’
• For unionized employee, unpaid suspensions must
be for ‘cause’

15. Supreme Court of Canada:
• Employer justified in suspending an employee for
administrative reasons, but following criteria must be met:
- Decision to suspend must be based on protection of
legitimate business interests;
- Employer must act fairly and in good faith;
- Suspension must be for a relatively short period of time or
be of a fixed duration; and
- Other than in exceptional circumstances, the suspension
must be with pay.

16. Suspending Union Employee with Pay
• Arbitral case law mixed on question of whether an
employer may impose paid non-disciplinary or
administrative suspension pending outcome of
investigation.
• Determination of whether a paid suspension is or is
not disciplinary in nature is a finding of fact, to be
made in each case, dependent upon the individual
circumstances.

17. Suspending Union Employee with Pay
• Even where paid suspension is non-disciplinary,
union representation should be provided if
otherwise required by collective agreement
• Try to be clear that suspension is non-disciplinary, to
avoid later claim of “double discipline”

18. Administrative/Paid Suspensions
• Suspend pending outcome of investigation
• Try to avoid other work-related consequences (e.g.,
missing training opportunities)
• Don’t unilaterally assign as vacation time

19. Conducting the Investigation
• Arrange for an interview room which ensures
confidentiality - off-site, if necessary
• Allow sufficient time for each interview and for time
between interviews whenever possible
• Limit number of interviews conducted each day -
you won’t be able to adhere to an overly ambitious
schedule

20. Conducting the Interview
• Ideally use 2 interviewers - easier for taking
notes and better for analyzing information
and reaching conclusions
• Consider gender and work relationships in
choosing investigators/interviewers
• Can record interview but has disadvantages

21. Conducting the Interview
• Both interviewers should take extensive notes
• Onus on one investigator ask question; other
to take notes; switch roles
• Make careful notes re: dates, times, places,
witnesses

22. Conducting the Interview
• Inform each person at start of interview:
- This is not a decision-making meeting - it is an
information-gathering meeting
- That the individual is required to keep everything
discussed strictly confidential
- Explain limits of confidentiality
- That they are protected against suffering any
repercussions for participating in process

23. Conducting the Interview
• Inform each person at the end of the interview:
- How they can get in touch with you if they
remember something further they wish to add
- That you may be back in touch with more
questions and if possible to make arrangements
for private communications without need to meet
- Remind re: confidentiality - do not discuss
interview with anyone

24. Written Statements
• Inform each interviewee that you may prepare a
written statement containing some or all of what
they have said for their review and signature
• Written statements are not always necessary - oft-
times your written notes (and/or recordings) are
sufficient
• Statements useful depending on nature of issues
under investigation

25. Conducting the Interview
• Ask a mix of pre-prepared questions as well as
questions which arise based on what you hear
• Repeat questions and/or ask similar questions from
different angles
• Listen carefully for discrepancies
• Pay attention to demeanour and body language
• Ask for drawings; visit work locations at issue

26. The Alleged Perpetrator
• Has right to be fully informed of the allegations
• Has right to be given full and fair opportunity to
respond to the allegations
• This usually means disclosing names of complaints
and witnesses
• Typically second or last scheduled interview (of first
round)

27. After the Interview
• Type up notes as soon as possible
• Make list of follow-up questions after reading notes
• Interviewers/investigators should exchange and read
each other’s notes
• Be sure to follow up with second (or more)
interviews as needed

28. After the Interview
• Interview anyone whom the alleged perpetrator
wishes you to interview
• Interview anyone mentioned in any interview if it
seems reasonable to suppose that such persons have
relevant information
• Identify loose ends and follow-up questions
• “Run to Ground”

29. Assessing the Evidence
• Try to sort out and identify what is objective/factual
• Don’t be afraid to make findings based on credibility
as long as you consider all information provided
• Standard 1: Balance of Probabilities
• Standard 2: Clear and cogent evidence
• Arguably both part of same standard

30. Assessing the Evidence
• May be appropriate to draw negative inferences
from:
- Silence
- Repeated “no’s”
- “I can’t remember” when it would be reasonable
to remember

31. Assessing the Evidence
• Don’t limit yourself to interview notes
- Time cards/sheets/attendance records
- Log books, meeting minutes
- Personnel actions, e.g., previous disciplinary
warnings, especially if written
- Video surveillance
• Common sense/logic

32. Assessing the Evidence
• Taking into account the preponderance of
information gathered, which version of events is
most credible?
• It is okay if there is insufficient information on which
to determine whether the complaint is substantiated
but ensure that parties understand this is different
than “innocent” or “guilty”

33. Communications
• A written report should be prepared. This may not
be shared with the complainant/alleged perpetrator.
• However, a letter summarizing the process, outcome
and conclusions (or lack thereof) should be provided
to the complainant and to the alleged perpetrator.
• These letters should be legally reviewed prior to
issuance.

34. Outcome and Remedial Action
• As appropriate, the letters should set out what steps
and actions the organization will be taking in
response to the outcome of the investigation and
the conclusions reached.
• Develop an action plan and follow through on it.
• Don’t immediately hold the “Dick and Jane sexual
harassment seminar” (where Dick and Jane were
primary parties in investigation).

35. Outcome and Remedial Action
• Expect and manage ongoing tensions and stresses in
the workplace. Provide support/access to EAP as
needed.
• All investigation materials should be kept away from
individual personnel/HR files and kept in a secure
location where they can be accessed only by senior
managers/those who need to know.
• Retain for as long as possible; at least 7 - 10 years.

36. WORKPLACE INVESTIGATIONS
Questions?
Chuck Tahirali, Senior HR Consultant
(416) 216-5901
chuck@stlawyers.ca