This year has created innumerable challenges for employers- including the challenge of how to effectively conduct a workplace investigation when health and safety protocols demand a certain degree of separation. Fortunately, the same Do's and Don'ts still apply to employers, whether they are conducting an investigation two meters apart or virtually through Zoom.
- Don't (inexcusably) delay: Memories fade over time and adjudicators may interpret delay as a sign that the conduct is insignificant or that the conduct is condoned. This does not mean that investigations need to be rushed, however- on the contrary, hasty investigations can be equally fatal. Best practice dictates that investigations commence when you reasonably learn of conduct, or suspected conduct, that may justify employer intervention, disciplinary or otherwise. Employers are given latitude in planning their investigation appropriately to ensure the objectives of the investigation are met and, now, that any pandemic protocols are complied with.
- Do hear (and preferably see!) the employee's side of the story: Employees under investigation are entitled to the investigation being conducted fairly. This includes being afforded the opportunity to know, and to effectively respond to, the concerns under investigation. Since investigations often include references to documents (e.g. employment policies, e-mails, etc.), and nonverbal cues are as important as verbal communication, meeting with the employee (in a physically distant way) is preferred by adjudicators and e-mail or telephone-conducted investigations frequently criticized. Where meeting with the employee is not reasonably possible, meeting virtually using a secure platform with video capability is the next best thing.
- Do hear (and preferably see!) witnesses: The goal of any investigation is to determine the facts, so interview all witnesses, favourable or otherwise, and follow-up with witnesses where necessary. The same meeting, or virtual meeting, preferences exist with your witness interviews as they do with the employee under investigation.
- Don't "fly blind": Prepare your questions in advance. Investigatory questions are like roadmaps - and you want to know where you're going or know where you're being taken! Consider all avenues that need to be explored- the who, the what, the where, the why, the when, and the how. Anticipate issues and answers and be ready to follow up on or challenge responses that don't make sense. Unless otherwise agreed to with the employee (or the union), there is no obligation to provide your investigatory questions in advance to the employee (even in a pandemic). In doing so, you lose the candid response.
- Do choose your investigator wisely: The investigator should be someone who is experienced, knowledgeable, and can remain objective and independent throughout the investigation. Sometimes this means engaging a neutral third party to conduct the investigation for you.
- Do comply with policies and your collective agreement: If there are policies in place that set out investigative procedures (e.g. most harassment policies will include some reference to the investigatory process), then you should ensure that these policies are followed or that you have a reasonable explanation for why the policies need to be departed from (e.g. compliance with pandemic protocols). Similarly, if you have a collective agreement that applies, then ensure you comply with its provisions and afford any right to union representation that may exist for investigatory meetings, including those that may lead to disciplinary action.
- Do preserve your evidence: You should review, at an early stage, what evidence is likely to be lost, modified, or deleted in the ordinary course of business and take steps to prevent that from happening. Failure to preserve key evidence can be fatal to a case.
- Do have a note-taker: Best practice is for employers to have another member of the management team attend the meetings to take notes of what is discussed (and to record non-verbal cues when given). Why one note-taker? Note-takers often take notes differently and the difference between notes provides an opportunity to challenge the accuracy of all of the notes. Limiting yourself to one employer note-taker helps to avoid this problem.
- Do ask for help: Investigations can be complicated. Do not be afraid to ask for help. You should use the resources available to ensure that your investigation results in a decision that can be upheld, including retaining experts and obtaining legal advice where necessary.
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