1. 1 Effective Internal Workplace Investigations Best Practices

2. 2 Acknowledgements Sexual Harassment Investigations: How to Limit Your liability and More – a Practical Guide –Arjun P. Aggarwal and Madhu M. Gupta. 2004. Email harassment_publications@yahoo.ca harassment_publications@yahoo.ca Human Resources Guide to Managing Workplace Harassment –Barry Kuretzky and Jennifer MacKenzie. 2003. www.canadalawbook.ca www.canadalawbook.ca Workplace Respect Toolkit –Construction Owners Association of Alberta. May 2005

3. 3 My Mandate What triggers an investigation? What types of events warrant an investigation? How does one begin conducting an investigation? Who needs to be interviewed? What confidentiality issues are present and how should they be addressed?

4. 4 Why Is An Investigation Necessary? Performance and productivity –Swift resolution of conflict “Walks the talk” –builds credibility/trust in the Respect in the Workplace Policy Protects the corporation against liability –when done effectively

5. 5 Faulty Investigations An employer’s worst nightmare Liability –Civil suits –Human rights complaints

6. 6 What Triggers An Investigation? Someone makes a complaint –Offended person –Third party (an observer) –Verbal report –Written report Treat every complaint seriously –Informal process –Formal process

7. 7 Interim Action Determine if interim action is necessary –Separation of the parties Key considerations –Complainant’s wishes –Severity of the allegations

8. 8 Choosing Between Informal And Formal Processes Consider the nature and severity of the conduct at issue Every complaint does not require a full- fledged formal investigation Whenever appropriate/possible, informal processes preferred

9. 9 Informal Processes Less stressful for everyone Quicker, more flexible, involves fewer people Best option for“win-win” for all –Mutually satisfactory outcome for both Appropriate for low level concerns Wide range of strategies –Reasonable expectation that the action taken will resolve the problem Voluntary

10. 10 Factors Pointing To A Formal Process Previous complaints against the same person Person has received previous warnings Alleged conduct is particularly serious Evidence of or serious concern about retaliation

11. 11 Factors Pointing To A Formal Process Continued … May be the only way to protect a person unfairly accused May be the only way to put an end to a complaint for a person who is unable to “let go and move on”

12. 12 Key Principles Underlying an Effective Process Competent investigator Procedural fairness Timeliness Thoroughness Support for persons involved Confidentiality Documentation

13. 13 Choosing the Investigator Options –A single person –A team of two –A committee of three Internal or external Time and the skills to do the job effectively

14. 14 The Investigator Competent –Trained and experienced –Neutral and objective –Good writing skills –Capacity to act as a good witness in the case of a subsequent proceeding Fact-finder –What happened? –Did this result in a breach of policy?

15. 15 Investigator’s Responsibilities Analyze the allegations Develop an investigative plan Interview all parties (in person) –Written signed statements Keep the complainant and respondent informed of the progress of the investigation Review all relevant documentation Analyze the information gathered Prepare a written report

16. 16 Essentials of Procedural Fairness No bias Respondent informed of the complaint and given a full opportunity to respond to all allegations –Copy of the written complaint –Time to consider response –Right to representation Union representative May want legal counsel (who pays?) Other No disciplinary action taken before the investigation is concluded

17. 17 Timely Response Prompt action is essential No clear definition of how to define “prompt action” If possible, upon receipt of the complaint or at least within 24 hours –May not be realistic Concluded as soon as possible –Without compromising thoroughness

18. 18 Confidentiality Avoid promises of absolute confidentiality –Confidentiality does not equal anonymity –Will be maintained to the extent possible Only those who need to know –Relevant supervisory personnel –Respondent –Witnesses Name of complainant Information provided becomes part of investigation report Report may be subject to disclosure under certain proceedings

19. 19 Location of the Interviews Impact on confidentiality Impact on the comfort levels of the interviewees Preferably away from the worksite –Conference room of nearby hotel –Office of the external investigator

20. 20 Documentation Every step documented –All telephone calls, meetings, documents reviewed Final report –Describes the investigative process –Summarizes all of the evidence –Reaches a conclusion on the merits of the complaint –Draft shared with both parties prior to being finalized Sometimes decided not appropriate to share the full report If so, provide parties with general conclusions of the investigation

21. 21 Dealing with the Aftermath Rumours and gossip not uncommon –May need to set the record straight –Essential to be mindful of the personal information and sensitivities of the parties affected Negative impact on employee morale and productivity –May need some form of intervention at the unit level