Kevin Marshall
March 27, 2024
Conducting transparent, thorough and fair workplace investigations is crucial to maintaining a healthy work environment. But be aware of the many landmines that can ensnare even the most reputable employer!
In this blog post for employers, I'll explore the essentials of workplace investigations, providing valuable insights for you in dealing with both employees and independent contractors.
Key Steps in Conducting a Workplace Investigation
1. Take Prompt Action
* Act swiftly to initiate an investigation when a complaint or concern arises.
* Follow the workplace investigation policies and procedures set out in the relevant employment contract, contractor agreement, employee handbook, memo and/or bulletin.
2. Maintain Impartiality and Fairness
* Designate a knowledgeable and impartial investigator to ensure fairness. In most cases, you or a high ranking manager are familiar with the workplace culture and the personalities involved, and thus are best suited for the role.
* If the complaint involves a manager or owner who would otherwise conduct the investigation, select another trusted internal employee with no personal stake in the matter (such as a Human Resources manager). Only as a last resort should you hire an external professional; if so, consider using a retired Judge.
* Do not suspend the accused employee (especially without pay) or break the contract with your accused independent contractor before completing the investigation. However, if possible and where warranted, minimize or eliminate contact between the parties.
3. Define the Scope
* Clearly outline the scope and objectives of the investigation to both the complainant and the accused. Identify the specific allegations or concerns to be addressed, ensuring a focused and efficient process.
4. Gather Evidence
* Collect all relevant evidence, including witness statements, recordings, and any other pertinent information.
* Be sure to retain a written record of all steps taken during the investigation to ensure transparency. Consider the use of audio and/or audio-visual recordings.
5. Maintain Confidentiality
* Emphasize the importance of confidentiality to all parties involved. Individuals should feel comfortable sharing information without fear of reprisal.
6. Interview All Parties
* Speak with the complainant first, then his/her witnesses, then the accused, then his/her witnesses. Re-interview as needed if new information comes to light.
* Conduct thorough and respectful interviews with all relevant parties and witnesses.
7. Keep It Short
* Have a game plan involving each of these steps within one to three days. The alternative - a prolonged investigation, possibly stretching over several weeks - risks the spread of rumours and innuendo, thereby harming workplace morale.
8. Analyze and Report
* Analyze the gathered information objectively and include findings, conclusions, and recommended actions in your report. Inform both the complainant and the accused.
* If the complaint is not upheld, both parties must be informed that no retaliation will be permitted (unless the complaint was made in bad faith).
* Despite the possible disruption and turmoil caused by an investigation, your primary focus must always be the well-being of your business. Therefore, while meeting your contractual and legal obligations, look for opportunities to restore peace in the workplace, rather than appeasing the interests of the parties involved.
Seeking Legal Guidance
Why Consult with an Employment Law Lawyer?
As an employer, navigating the complexities of workplace investigations can be challenging. Consulting with an experienced employment law lawyer ensures that your actions are legally sound and align with the best interests of your business. In most contexts, this involves a “behind the scenes” consultative role in order to ensure continuity with past practices and stability for the future.
Your Partner in Employment Law
Whether you are managing employees, independent contractors, or both, I can provide legal guidance tailored to your particular circumstances. If, for example, your organization does not yet have such policies and procedures in place, I can help you draft those for your workplace.
For more detailed information about workplace investigations or to schedule a consultation, please don't hesitate to contact me directly.
