Workplace investigations are an important tool for assessing the validity of employee misconduct allegations, and are relied upon by employers when making decisions regarding corrective action or prevention. Accordingly, careful consideration should be taken when determining who should conduct the investigation.
Investigators can either be internal or external. When deciding who to appoint to conduct a workplace investigation, organizations should choose an investigator that has the following qualities:
- Neutrality – It is essential that the investigator is fair and impartial. This means that the investigator should not be involved in the complaint and should not have a prior relationship with either the complainant or the respondent, including a direct reporting relationship. The chosen investigator must not only be able to objectively assess the complaint, they should be seen to be objective by the parties in order to maintain the integrity of the investigation.
- Training – The investigator should have the necessary training to conduct a proper investigation. This includes knowledge of workplace policies and legal obligations, as well as practical investigative skills. This is because not only must the investigator follow the requirements set out by the workplace policy (e.g., timelines) or applicable laws (e.g., recognizing harassment), they must also have the hands-on skills that are involved in the investigation process, such as knowing how to frame their questions in a neutral manner, how to elicit relevant information, or how to weigh evidence and access credibility.
- Availability – The investigator should be available to promptly investigate the complaint. Failure to commence an investigation in a reasonable time can lead to legal exposure. For example, if the complainant perceives that their complaint is not being taken seriously, or there is a delay in process, this can lead to the employee making a human rights or occupational health and safety complaint, or taking other legal action. Failure to investigate promptly can also expose employers to increased human rights damages or punitive and aggravated damages.
In certain circumstances, despite having an internal candidate that meets the above requirements, an external investigator may still be preferable for a number of reasons:
- Complexity and sensitivity – If a complaint raises complex or sensitive matters, an external experienced investigator may be more appropriate, particularly where there is a high risk that the outcome of the investigation may ultimately be scrutinized by a court or tribunal.
- Expertise – Internal investigators may lack specialized expertise required for the purposes of the investigation. For example, an investigation may require an expert in financial auditing or computer forensics.
- Maintaining privilege – Depending on the severity of the allegations and/or potential consequences resulting from the investigation, hiring independent legal counsel as the external investigator to provide legal advice based on their investigation will protect against disclosure of the final report under solicitor-client privilege.
- Seniority of respondent – When a complaint is made against a more senior person in the organization, an internal investigator will inevitably be under their control, either directly or indirectly. In these situations, an external investigator may be necessary to ensure the impartiality and fairness of the investigation. In addition, in these circumstances, an external investigator will lend additional authority and credibility to the investigation’s findings and recommendations.
Overall, organizations should be thoughtful when choosing an investigator as selecting the right investigator can mitigate against the legal pitfalls and potential liability that can arise from a flawed investigation.
If you are unsure about whether you should use an internal or external investigator in your situation, or if you have any other employment and labour questions, please reach out to your local Dentons Canada contact.