1 effective internal workplace investigations best practices
TRANSCRIPT
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Effective Internal Workplace Investigations
Best Practices
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Acknowledgements
• Sexual Harassment Investigations: How to Limit Your liability and More – a Practical Guide– Arjun P. Aggarwal and Madhu M. Gupta. 2004. Email
• Human Resources Guide to Managing Workplace Harassment– Barry Kuretzky and Jennifer MacKenzie. 2003.
www.canadalawbook.ca
• Workplace Respect Toolkit– Construction Owners Association of Alberta. May 2005
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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?
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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
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Faulty Investigations
• An employer’s worst nightmare
• Liability– Civil suits– Human rights complaints
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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
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Interim Action
• Determine if interim action is necessary– Separation of the parties
• Key considerations– Complainant’s wishes– Severity of the allegations
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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
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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
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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
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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”
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Key Principles Underlying an Effective Process
• Competent investigator
• Procedural fairness
• Timeliness
• Thoroughness
• Support for persons involved
• Confidentiality
• Documentation
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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
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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?
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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
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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
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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
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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
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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
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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
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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