One thing that often lands employers in hot water is failing to conduct a proper workplace investigation. Usually the problem isn't that there was no investigation at all. It's that the investigation was flawed, inadequate or biased.
Workplace investigations are essentially mandatory when there are allegations of harassment, theft, workplace violence, fraud or other dishonesty. Yet many organizations still fail to do them properly, even in these difficult situations.
A cautionary case: Piresferreira v. Ayotte
Even large organizations get it wrong. Piresferreira v. Ayotte, a case involving Bell Mobility, dealt with an altercation between an employee and her supervisor that ended with the supervisor allegedly shoving her.
The employee complained to the HR department. Instead of fully investigating the matter, the employer placed her on a performance improvement plan (PIP).
The Ontario Court of Appeal ruled that employers and supervisors can't be held liable to employees for the tort of negligent infliction of mental distress. Even so, the employee was awarded damages for constructive dismissal, along with $45,000 for mental suffering.
More relevant here are the trial judge's comments: Bell failed to adequately investigate the incident or apologize for the assault, immediately and inappropriately imposed a PIP, and failed to ensure there was a safe work environment for the employee to return to.
Internal or external investigator?
Many HR professionals aren't familiar with the basics of investigations. A qualified investigator can be valuable, but HR should be equipped to handle at least some investigations internally, and to recognize when it's time to call an expert.
Depending on the background of your internal investigators and how sensitive the matter is, an impartial external investigator may be the better choice. Consider one when:
- there is any hint of a conflict of interest
- the dispute involves very senior people in the organization
- the allegations are particularly serious
- the dispute involves complicated legal, financial or technical issues
- the allegations relate to physical violence or serious criminal conduct
How to avoid a botched investigation
- Get all sides of the story. Interview every party thoroughly, impartially and in private. Ask open-ended questions.
- Keep accurate records of what was said. Wherever possible, capture it word for word.
- Maintain confidentiality. Don't reveal who made the complaint or the specific allegations unless you must, to let the person accused defend themselves or to get a full picture of what happened.
- Preserve evidence. Keep documents, copies of emails and phone records. Take photographs where they apply.
- Use technical experts to confirm that video surveillance footage or computer usage data is authentic.
- Consider having an independent person sit in. Allow employees to bring a colleague or union representative to interviews.
- Consider reporting alleged criminal conduct to the police, and make sure your internal investigation doesn't interfere with a police investigation.
- Consider moving the complainant or the alleged perpetrator to a different workstation while the investigation is under way.
- Consider paid leave. Depending on the complaint, you may let the complainant take a paid leave of absence until the investigation is complete.
- Don't jump to conclusions. The person accused also has rights and should be presumed innocent until proven guilty.
- Make sure there are no reprisals for making a complaint, unless the allegations turn out to have been made in bad faith.
- Know when you're out of your depth. Get legal advice or help with the investigation when you need it.
- Write a full and accurate report with recommendations when the investigation is finished.