In continuation from Part 1 of our blog series on how best to approach harassment complaints, we will now focus on stage 2 of the process as we examine how best to conduct a fair and thorough investigation, following a workplace complaint.
In every investigation, there are usually 2 or more sides to a story. As a leader, you have an opportunity to model fairness in your response to a complaint by not jumping to conclusions. This means treating each individual with respect and fairness the same way you would want to be treated if you were in the same position.
The concept of “procedural fairness” is a legal term that denotes fairness in process – one that is consistently applied without bias before arriving at a decision. It is based on four key principles:
- The right to know the case against you
- The right to a meaningful opportunity to respond and be heard
- The right to an impartial decision
- The right to have decisions based on facts and rationale
In the context of a workplace investigation, a fair process means the respondent needs to be informed of the particulars and/or allegation(s) against them in advance in order to have an opportunity to properly respond before any decision is made.
Deciding who to interview
Typically, the first to be interviewed in most investigations is the complainant (aka principal party). This is then followed by the respondent (aka responding party) or witnesses depending on availability, timing and the facts of each case.
Both the complainant and respondent will likely identify witnesses to interview. For each of the witnesses identified, it’s important to probe the specific reason the individual has identified them as a witness so further vetting can be done. As the investigator, you’ll want to cover all your bases in the quest to be thorough, but the question is, do you have to interview all of them? The answer is, not necessarily.
Determine the relevance and level of information each witness can offer. If there is first-hand information pertinent to the investigation that each witness can offer, then definitely, they should be interviewed. However, if many were involved in the same incident and are likely to offer repeated information then perhaps you can decide to only interview a sample of them. Other times, a party may include witness names as a personal or character reference. They should be filtered out promptly in the event the person identified did not have any direct first-hand knowledge about what’s being investigated. If this scenario applies, it is recommended that you document your reason(s) for not interviewing a particular witness in case it is ever questioned.
In my experience, taking the time to plan out who to interview and in what order often helps to save time, lessen the need for unnecessary follow-ups and make the interviewing process more efficient as well.
Set the stage
No matter which way you slice it, taking part in a workplace investigation is not a comfortable feeling. To help put participants at ease, be transparent from the outset. Explain in detail the process you’ll be undertaking, what they can expect, review policies and rules to be followed as it relates to honesty, confidentiality and no retaliation. Make it clear that they are expected to keep all information shared about the investigation confidential and not to discuss with anyone in the workplace as any breach may compromise the integrity of the investigation as a whole.
For federally regulated employers, there is also the requirement to provide the principal and responding parties of the complaint monthly status updates regarding the status of the resolution process until it is complete.
To get the most out of each interview session, it is important to be prepared. By this, I mean the following:
- Reviewing the complaint and response to allegations in detail so interview questions can be prepared in advance to ensure all is covered
- Ensure a neutral tone in how you ask the questions which requires some forethought. For example, instead of probing “why did you do that” which has more of an accusatory tone, better to rephrase “what is the reason you decided on that course of action?”
- Take a trauma informed approach to the interview process and show care for the interviewee to minimize potential harm stemming from taking part in the investigation process itself
- Take copious notes during all interviews to ensure there is an accurate record of what has been said
In my experience, I’ve found that the quality of the responses you get will largely depend on how and what questions you ask. The more detailed the question is, the better it is for the interviewee to pinpoint their memory for a better response. Whereas, when you ask general questions, you’ll likely get vague answers that may not be very helpful.
Take the time to collect and preserve evidence throughout the investigation. In a workplace, they can come from various different sources such as phone records, meeting invites, letters, texts, emails, CCTV video, photos, objects, receipts, GPS trackers, work calendars/schedules, dash cam, etc. If there is a possibility that evidence can be tampered with or deleted once the investigation is made known to the parties, it is best to plan ahead and involve your IT department to try to preserve evidence in advance by backing up any company properties such as computer hard drives, emails, phone data, text messages and so on. The more evidence you can gather, it will help validate which version of events are more credible and where the truth lie.
Conduct follow up interviews
This is a crucial step in the data collection stage of any harassment investigation. New or conflicting evidence can be brought to light any time after the initial discovery interview with the parties and so, this is an opportunity to go back and ask follow-up questions to get at the truth. If ever you feel things just don’t add up, go back and double check to ensure you are not leaving any stones unturned.
This part of the process will also be an opportunity for a party to respond directly to any inconsistencies in order to provide further context or to fill in any gaps in logic. Assessment of credibility is often necessary in these types of investigations knowing things are often said behind closed doors without other evidence to rely upon. How do you determine which version of events to believe? Below are some key factors to consider when assessing credibility:
- Is the story plausible in context with other evidence?
- Is there consistency in the statements made?
- Is the individual forthright and honest with the information shared?
- Does the individual have any conflict of interest or bias towards a certain outcome?
Conducting an investigation interview is an art. I’ve learned that people tend to hide behind generalities when trying to evade certain questions. It is as much about what is said as it is about what is not said. Therefore, ask direct questions to bridge the missing links and to better assess credibility as well – it’s all in the details.
Pulling it all together – Write the report
At this stage, you’ve got volumes of evidence and interview notes to sift through and analyze in order to compile your report. Depending on whether you are provincially or federally regulated, there are different compliance requirements in writing the report.
Occupational Health & Safety Act (OHSA): Provincially regulated employers
The provincial regulation provides guidance to employers regarding what should be included in a written report under the “Code of Practice”. The following is a list of the inclusions in the report:
- summarize the steps taken during the investigation
- the complaint
- the allegations of the worker claiming harassment
- the response from the alleged harasser
- the evidence of any witnesses and the evidence gathered
- findings of fact
- conclusions on whether the allegation(s) is substantiated
Under the OHSA, the investigator’s report is not to be provided to the complainant or respondent to protect the identity of witnesses involved and to maintain confidentiality. Only the results of the investigation and any corrective action taken to address the complaint are required to be provided to the parties of the complaint. This should be done in writing within 10 calendar days of the investigation being concluded.
The legislation does not spell out the level of detail employers are to provide the complainant and respondent if corrective action is to be taken. If the complaint is substantiated, you only need to indicate what steps you have taken or will take to prevent a similar incident in the future.
Canada Labour Code (CLC): Federally regulated employers
There are significant differences in what is required in an investigator’s report under provincial regulation (OHSA) versus federal legislation (CLC). For one, Bill C-65 stipulates that the investigator’s report cannot reveal directly or indirectly the identities of the persons involved in the investigation. Second, a copy of the report must also be provided to the health and safety committee, the principal party and the responding party. The report must include the following:
- a general description of the incident;
- conclusions (including those related to the circumstances in the workplace that contributed to the incident); and
- recommendations on how to eliminate or minimize the risk of a similar occurrence
To comply with the above requirements, a separate redacted summary report will be required in addition to the full investigator’s report (shared with the employer only) that’s inclusive of the legislated components as well as those sections outlined in the provincial regulation to ensure it fully documents the entire investigation process complete with all the supporting evidence gathered in the investigation to make findings of fact.
Following the steps and considerations laid out in this article will help demystify what it means to conduct a fair and thorough investigation in workplaces today. If you missed Part 1 of our blog series, you can take a read from the link provided.
Stay tuned for more employer insights in our last blog of this series where we will examine on how best to restore the workplace in the aftermath of a workplace investigation.