10.2 The Lesson: The Role of Investigations in a Workplace Conflict

In Chapter 9, we studied verbal and non-verbal communication skills that support conflict resolution in the workplace. In Chapter 10, we are going to look at the importance of investigations and documentation for a Human Resources professional when handling specific workplace conflicts.

The Duty to Investigate

As a Human Resources professional, you need to understand when you are required to conduct a formal workplace investigation. Employees will bring forward concerns, disagreements and complaints on varying topics. Whether a formal investigation is required or not, it is important to take each concern seriously, document the concern, address the matter in a timely fashion, and maintain confidentiality.

Formal Investigations

The Occupational Health and Safety Act requires an employer to conduct a formal workplace investigation when there is a complaint or incident that involves workplace harassment, such as bullying, intimidation, harassment or sexual harassment. The Occupational Health and Safety Act requires an employer to publish a policy and procedure that addresses workplace harassment and includes a description of the steps that will be taken to address a harassment complaint.

In addition to the requirements outlined in the Occupational Health and Safety Act, employers may have a policy that outlines instances that require a formal investigation, such as any instance involving company finances. Let’s look at the steps in a formal workplace investigation.

Training

While this textbook will provide you with a high-level overview of the steps in the investigation process, for the purpose of conducting internal workplace investigations, ensure your organization has at least one individual who is formally trained to conduct workplace investigations and maintain proof of this training on file. In addition, employers should seek legal advice when handling workplace investigations to ensure legal compliance. Two examples of formal workplace investigation training programs include HRPA’s Workplace Investigations Training and Certificate Program and the Osgoode Advanced Certificate in Workplace Investigations.

Preparing for a Workplace Investigation

It is best to establish a plan before starting a workplace investigation. The plan should include a review of the resources needed to complete the investigation. If the investigation will require travel to more than one location, you may need to ask for additional support. There is no way of knowing what kind of investigation it will be. In some cases, the investigation may be lengthy and complicated, resulting in a formal report that will be read by upper management, provided to a government agency such as the Ministry of Labour, or submitted for review in a court case. On the other hand, a workplace investigation may be brief and straightforward, resulting in a review of procedural compliance.

Objectives of the Investigation

There are several objectives when conducting a workplace investigation:

• Determine what happened with respect to an incident.
• Determine who was involved in the incident.
• Determine the events surrounding the incident.
• Determine if there is evidence to support a claim of workplace misconduct.
•  Determine if there was a violation of company policy and procedures, a breach of compliance or a violation of the law.
• Complete a thorough investigation that can withstand scrutiny.

Evidence

Gathering good evidence is the purpose of any investigation. It is the quality of evidence collected in an investigation that allows an investigator to make a prudent and wise conclusion. There are many different types of evidence that an investigator can collect, and it is important that an investigator be able to separate key pieces of evidence from extraneous evidence.

What is Evidence?

Cambridge Dictionary (n.d.) defines evidence as “anything that helps to prove that something is or is not true.”

When we hear the term evidence, we tend to think of what we have seen on television and in movies—physical evidence picked up by hands in latex gloves and placed in clear plastic bags. This is not necessarily the case in a workplace investigation; the most pertinent evidence will most often be the oral evidence given by the involved parties or witnesses. Sometimes, there will be documentary evidence such as records, files, and documents, and occasionally, physical evidence like video recordings.

Evidence may take various forms:

1. Testimony from interviews
2. Documents- files, records, documents, emails
3. Physical evidence, e.g. social media post screenshots, ruined products, video recording

Notifications

Parties involved in the investigation should be notified that an investigation will occur. The first step is to ensure that all the people who will be questioned as part of the investigation have been identified. Additional participants may be identified as the investigation unfolds, and the investigator will go through the same notification process.

Parties to the Investigation

Complainant. The person(s) who has/have made a complaint or has/have accused someone of a wrongdoing. In some cases, this will be the organization itself.

A complainant may be another employee, which is common with harassment, discrimination, and bullying complaints. The complainant may also be the organization in cases of misconduct, which will be represented by the supervisor or manager. Managers and supervisors may not view themselves as “complainants” as they will simply consider themselves a managers informing human resources of suspected wrongdoing. For the purposes of this text, the organization representative – whether it be a supervisor, manager, or human resources – will be viewed as either the complainant or witness in the investigative process.

Respondent: The person(s) who have had a complaint(s) made against them.

Occasionally, there is more than one respondent in a complaint. If the issues are related, the investigator may conduct one investigation, but where the issues are different, there may need to be separate investigations for each unique issue.

Witness: “Someone who sees, knows or vouches for something.”

An investigator may have a list of witnesses provided to them based upon the complaint. If the complaint is an individual(s) they may provide a list of witnesses in the original complaint. If the complainant is the organization itself, there may already be a list of witnesses that a supervisor or manager identifies. In the event that the organization is the complainant, the supervisor or manager may also be a witness to the issue.

Witnesses may have seen firsthand or overheard the incident, or they may have responsibility for something that is relevant to a complaint (for instance, in the case of suspected fraudulent expense claims, the person responsible for processing those claims may be a helpful witness).

Confidentiality

Maintaining the confidentiality of workplace investigations is imperative for the Human Resources profession. An interviewee will question why they must maintain confidentiality about the process when the investigator will share the investigation results with management. The investigator’s role is to collect, synthesize and communicate the evidence and findings to the employer. Information received by the investigator is not held to the same standard of confidentiality as the interviewee since it is accepted that what is shared with the investigator will be passed on to management. However, the content of the interviews must be limited to those who need to know to deal with the issue. The information collected by the investigator must not be broadly shared in the organization. In addition, unless required by organizational policy and/or law, the investigator will not provide their investigative notes of the interview to others, only the final report.

The Interview Process

Once notifications have been sent out and the investigator has prepared their opening statement and questions, the interview process can begin. It may be a formal investigative interview that requires extensive preparation, or it may be a more informal interview which can be conducted shortly after an incident.

The Interview

Ideally, investigative interviews should be conducted face-to-face. This allows the investigator to meet the person and develop some rapport. It also enables the investigator to watch for visual clues during the interview that might indicate that the person is uncomfortable or does not understand a question or other body language and facial signals that can help conduct the interview.

If face-to-face interviews are not possible, then conducting them over video chat may be considered. Conducting a video interview using tools such as Skype, Teams, or Google Meet is a good alternative to face-to-face interviews.

Telephone interviews may be conducted if face-to-face or video chat is not possible, remembering that the participant may have support people accompany them to the interview. The arrangements must allow for their attendance. The interviewer will not benefit from observing the person’s body language or facial expressions in a telephone interview.

The investigator should ask if any accommodation needs are required before the interview. These could include an interpreter or using a meeting room that is accessible for those with mobility challenges.

Interview Steps

Below are the standard steps in an interview. This is simply a suggested template; the investigator may want to adapt and alter the steps to suit the situation. Ideally, the investigation will begin with interviewing the complainant, after which the investigator may be required to gather additional evidence or information. The next individual to be interviewed is normally the respondent, and lastly, witnesses.

1. Standard Opening
2. Housekeeping Questions
3. Investigative Questions
4. Interview Closing
5. Review Interview Notes
6. Interviewee signs off on Notes

The Standard Opening. The investigator will deliver a standard opening for the various parties to the investigation, whether the complainant, respondent, or witness. The opening will review the following:

• Introduction of parties
• Rapport building
• Purpose
• Establishing ground rules
• Confidentiality
• Retaliation

Housekeeping Questions are designed to help the interviewee feel more comfortable and get talking. They are easily answered and do not require much effort. Housekeeping questions may include confirming the participant’s name, job title, and length of time working for the employer.

Investigative Questions. These questions are open-ended and designed to get to the issues. They will focus on what the person saw, heard, or experienced firsthand. If the interviewee has previously provided a written statement, the investigator may ask for them to “re-tell” what happened and note if there are any variances from the original written statement. It is important for the interviewer to let the person talk and practice good active listening skills (nodding the head, smiling, etc.).

Interview Closing. The investigator should close off by asking the interviewee if they have anything else they would like to share, or if they have any questions. They may be surprised by what an interviewee will share; it could be something the interviewer completely overlooked. The investigator can then thank the individual for their time and advise them that should additional information be needed they will be contacted for an additional interview or conversation. The interviewee should be provided contact information for the investigator should they want to add anything to the information provided in the interview. The investigator will then advise the interviewee that they will be required to review the notes that the investigator has taken and sign off on their content.

Review the Interview Notes. At the end of an interview, the interview notes, whether typed or handwritten, should be shared with the interviewee. The person should be given the opportunity to read over the notes and make any corrections or edits that they feel are required before they sign off that the notes are an accurate description of their responses. The interviewer needs to advise the interviewee that any edits or changes may be noted by the investigator. This protects the original text from variation. If the person reads their statements and then regrets making the statement and wants to change it after the fact, the interviewer can allow them to change the statement but note the original text and what the person changed.

Interviewee Signs Off on the Notes. The investigator should include the following statement at the bottom of the notes: “The above X-page statement is given freely and is a true and accurate account of the events regarding the incident I observed. I have read the statement fully prior to signing.”

Depending upon the organization’s policies and procedures, the investigator may be required to provide a copy of the statement to the interviewee or the union if applicable. Depending upon the organization most investigators will also be required to sign the statement.

More on Interview Notes

An investigator should take notes during the interview; however, it is really up to them how they choose to take notes. Some investigators will use a notepad with removable pages, while others will prefer a bound notebook to reduce the possibility of pages being removed. Some investigators prefer to use a laptop to type their notes during the interview. This is ideal for those who can type quickly and accurately.

Whichever method of note-taking is used, the investigator needs to capture what the person said, not what the investigator thought that the person said. Notes should be written so the average person can understand what occurred in the investigation. The investigator should try to avoid using their own form of shorthand, using abbreviations or other time-saving shortcuts. It is important that the investigator does not exaggerate or interpret any statements; they are writing out exactly what the interviewee said. It is vital that the investigator NOT put their own impressions, opinions or comments into the notes. The investigator should not have comments in the margin that state their opinion, such as “this person is obviously lying” or “cannot trust what this person says.”

An investigator may make “memos to file,” which are personal notes about what an interviewee changed. The memo to file does not get signed by the interviewee but is a personal note by the investigator; it may be written in the first or third person.

Reporting    

Depending upon the nature of the investigation, there may be different reporting requirements at its conclusion. In less formal investigations, the conclusion of the investigation may be a meeting with human resources, the manager and the investigator to discuss the findings. Findings are the conclusions the investigator has made after looking into the incident; they are the outcome of the investigation. Findings in a less formal investigation may be captured in an email to management or noted in an investigation or employee file. It is recommended that some written records of the findings be made.

There may be more rigorous reporting requirements in a more formal investigation. This may include a requirement for a formal report to be prepared at the end of the investigation that will be shared with management, human resources, and the union (if applicable). The investigative report will provide a summary of the investigation, an account of how the investigation was conducted, evidence provided, and findings.

Investigative Reports

If we recall the objectives of the investigation:

• Determine what happened with respect to an incident.
• Determine who was involved in the incident.
• Determine the events surrounding the incident.
• Determine if there is evidence to support a claim of misconduct.
• Determine if there was a violation of company policy and procedures, a breach of compliance or a violation of the law.
• Complete a thorough and complete investigation that can withstand scrutiny.

The investigator aims to answer all of these questions: the who, what, where, when, how and possibly why questions. The investigative report captures this information and puts it into a concise format for the employer to review the investigation results. Depending upon the nature of the investigation, the report may be a simple one-page email, the notes taken at a meeting, or a comprehensive report. For this text, we will look at a more thorough report that the investigator can edit or reduce for the specific type of investigation conducted.

Preparing for a workplace investigation from”Chapter 5: Planning an Investigation” from Workplace Investigations for the Human Resources Professional by Kiersten Crane is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

“Chapter 6: Evidence“, “Chapter 9: Interview Openings“, “Chapter 10: The Interview” and “Chapter 11: The Investigative Report” from Workplace Investigations for the Human Resources Professional by Kiersten Crane are licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.