8 Chapter 8: Notification of the Parties

Parties involved in the investigation should be notified that an investigation will be taking place. The first step is to ensure that all the people who will be questioned as part of the investigation have been identified. As the investigation unfolds additional participants may be identified and the investigator will go through the same notification process.

Parties to the Investigation

Complainant= the person(s) who has/have made a complaint or has/have accused someone of a wrongdoing. In some cases, this will be the organization itself.

A complainant may be another employee as is common with harassment, discrimination, and bullying complaints. The complainant may also be the organization in cases of misconduct, which will be represented by the supervisor or manager. Managers and supervisors may not view themselves as “complainants “as they will simply consider themselves a manager informing human resources of suspected wrongdoing. For the purposes of this text the organization representative – whether it be a supervisor, manager, or human resources – will be viewed as either the complainant or witness in the investigative process.

The investigator must clarify in the policies or procedures if the organization is to be considered the complainant, with the supervisors, manager acting as witnesses; or whether the supervisor, manager or HR is considered the complainant. The complainant should be clearly identified before the investigation begins. Sometimes supervisors, managers or HR personnel do not feel comfortable being the complainant and would prefer that the organization take that role and they act as witnesses. This needs to be ironed out prior to the investigation commencing.

If there is more than one complainant and the complaints are not related to the same issue, a separate investigation may be required for each complaint. This is more common in cases of discrimination or harassment. If there is more than one complainant a single investigation can be completed if the complaints are related to the same issue.

Respondent= the person(s) whom have had a complaint(s) made against them.

Occasionally there is more than one respondent in a complaint. If the issues are related the investigator may conduct one investigation, but where the issues are different there may need to be separate investigations for each unique issue.

Witness = “someone who sees, knows or vouches for something.”^[1]

An investigator may have a list of witnesses provided to them based upon the complaint. If the complaint is an individual(s) they may provide a list of witnesses in the original complaint. If the complainant is the organization itself, there may already be a list of witnesses that a supervisor or manager identifies. In the event that the organization is the complainant, the supervisor or manager may also be a witness to the issue.

Witnesses may have seen firsthand or overheard the incident, or they may have responsibility for something that is relevant to a complaint (for instance, in the case of suspected fraudulent expense claims, the person responsible for processing those claims may be a helpful witness).

As the investigator conducts their investigation the respondent may identify other people, they wish the investigator to speak to who may be a witness. In addition, the investigator themselves may identify people that they need to speak to based on the testimony of the interviewees.

The investigator is not required to interview every witness put forth by the complainant, or respondent. However, the investigator should ensure that they interview critical witnesses, that is those who have crucial evidence. Failure to interview critical witness is an error in evidence collection, and a breach of procedural fairness.

Reaching out to the Parties

Some people may be shocked or dismayed that they are being questioned as part of an investigation and each person will react differently. It is safe to say that being questioned about a workplace incident is not part of an employee’s normal working day so receiving a notice to participate in an investigation will cause varied reactions from fear to anger. For this reason, the process of notifying complainants, respondents and witnesses must be well thought out and orchestrated carefully. Each organization should have a procedure for notifying the parties to an investigation, which will vary depending upon the organization.

The following should be considered when preparing to notify the parties of an investigation:

Timing

The investigator will need to plan the timing of the notifications in a manner that is fair and equitable to all parties. This can be a challenge. In the case of discrimination or harassment claims the complainant may know about the complaint weeks before the respondent is made aware of it. This may seem unfair to the respondent, but the investigator must follow the policies or procedures of the organization which may require certain activities be completed before the respondent is notified. For instance, there may be a requirement for due diligence regarding fact finding and acceptance of a complaint. Similarly, if there has been misconduct suspected by a manager, a complaint may be made to human resources who will need some time to determine if the matter will be investigated. In either case the respondent (employee) could potentially feel a false sense of security since nothing is happening or may be upset that nothing appears to be happening right away.

Knowing the Case to be Met

A fundamental principle of any investigation is telling the respondent what they have been accused of. This is called “knowing the case to be met.” It is a violation of natural justice to deny the person knowledge of what they are being accused. Investigators may want to take the tactic of ambushing the person with the complaint in the investigative interview to get their “real” answers. These investigators believe that if a respondent has time to prepare for the interview, they will somehow distort their answers and “get out of” answering truthfully. This is rarely the case and the courts and arbitrators have been critical of investigators who have used this tactic. In very rare cases the courts have permitted investigators to interview a respondent without first providing details of what the person has been accused of. This may happen in cases where evidence could potentially be destroyed, or the integrity of the investigation will be negatively impacted and the investigation compromised if the person is notified in advance. This is a high standard to be met and these cases will be extremely limited. It is normal to provide the respondent with a copy of the complaint in advance of the interview.

A Copy of the Complaint

Depending upon the workplace policies a copy of the complaint or a redacted version of the complaint will be provided to the respondent. Items that are extraneous, inflammatory, or just nasty for the sake of being nasty, may be removed as they do not add to the complaint and may make the situation worse. Remember, at the end of the investigation if there are no findings of wrongdoing, the individuals may be asked to continue to work together. The complaint may be redacted or summarized; but not to the point where the respondent does not have enough details to respond to the complaints against them.

The Respondent is not required to see the full witness statements in order to meet the legal obligation to conduct a fair and unbiased investigation.^[2] This is true in both misconduct and discrimination and harassment investigations.

The respondent must be given reasonable time to respond to the allegations against them. An investigator cannot simply give a respondent the complaint and then immediately question them. The investigator must give them time to prepare a response and seek advice if they wish to.

Witnesses do not receive a copy of the complaint or details of the suspected misconduct nor are they entitled to it. They are simply notified that there is an investigation in which they may have some information on.

Representation or Accompaniment

Who can accompany the complainant and/or respondent to the investigative interview will depend on the organizational policies and procedures. Below are listed some of the potential individuals that a complainant or respondent could request be in attendance during the investigative interview process:

Legal Counsel

Attendance of legal counsel to a workplace investigative interview may or may not be permitted under the organization’s policies. If the organization allows for legal counsel to attend the counsel is limited to supporting their client, not answering questions for them or intervening in the investigative process.

Individuals may state that it is their “right” to bring legal counsel. The right to legal counsel comes from the Canadian Charter or Rights and Freedoms, but these rights are only in very specific situations as follows:

• There must be conduct for which the person being questioned is arrested and detained.
• Consideration must be given to where a private person can “arrest and detain.”^[3]

It would be a unique situation where an employee is being “arrested and detained” thus normally a person cannot invoke the right to legal counsel in a workplace investigative interview. If someone is being rather difficult on this point, you as the investigator can simply let them know that they have no right to legal counsel and that they are free to leave at any time during the interview. This will resolve any belief that the person is being “detained” and thus is not entitled to a lawyer.

Support People

If the organization permits an employee to bring a support person to an investigative interview, the investigator will want to remind the third party that they are there for support not to answer the questions. If the third party is interrupting or obstructing the interview you can ask the interviewee if they wish to continue. An investigator can caution a third party that should they obstruct the interview the investigator will stop the interview and it will continue at an alternative time at which the third party may or may not be permitted. Any third party attending an interview should be advised of their duty of confidentiality in the process.

Union Representation

In a unionized workplace union representation must always be permitted to attend the investigative interviews. The union representative is there to support the interviewee, whether they are the complainant, respondent or witnesses, and ensure that any requirement of the respective collective agreement is met. The union representative is not to answer the questions and cannot interfere with the investigation. They may make notes, ask for clarification, or even ask for a recess with the employee. If, however, a question has been asked by the investigator a recess should only be allowed after the interviewee answers the question. This will remove any speculation that the union representative coached or gave the interviewee the “answers” to a question.

Other Supports

Depending upon the complaint type both the respondent and complainant or the witnesses may need support and guidance. In a unionized environment support to employees is provided by the union. However, if organization size permits it may be helpful to have an HR person assigned to the complainant, respondent and/or witnesses to be a liaison through the process and assist in communication with the investigator whether internal or external. This provides support for all the parties involved.

Interim Measures

Once notification of an investigation has been provided to the parties, the “cat is out of the bag” as is said. It is not uncommon for respondents to feel anger, fear or confusion when they find out that they have been named in an investigation. Sometimes complainants may feel vulnerable now that the complaint has come to light. Either party may fear reprisals or retaliation. Investigators should consider whether interim measures may be required either at the time of notification of the complaint or at another time during the investigation

Interim measures are temporary arrangements that are adopted by the organization to minimize potential interaction of the parties or provide a safe and comfortable working environment.

Interim measures may include:

• Changing supervision
• Suspension with pay pending the investigation outcome
• Change in work location
• Change in work duties
• Other measures to reduce potential negative/inappropriate interactions of the parties

At the time of a complaint a complainant may not think there is a need for interim measures, but things may change. It may also be the respondent who feels that interim measures are required. Employers need to be open to changing working conditions throughout the investigative process at any point in time if any of the parties indicate that they feel uncomfortable, unsafe, or threatened. Normally the individual requesting the interim measures is subject to the change, but that may not always be the case. The organization should minimize the impact to the parties, other employees and the organization itself.

Interim measures should not be viewed as punitive; they are temporary arrangements to minimize the discomfort of both parties. Interim measures will require a change to working arrangements, and change is difficult for most people. HR may be placed in a difficult position where the complainant feels that the respondent should be “inconvenienced” with interim measures and then the respondent feels that since the complainant made the complaint they should be “inconvenienced by interim measures.” The organization will want to implement interim measures that make sense and are least disruptive overall.

The organization should also be sensitive to the impression interim measure give to other people. If a manager who is accused of harassing a subordinate is moved to working from home or placed on paid suspension pending the outcome of the investigation, people in the department may chat or gossip about the reasons for this change. The organization will want to quash this type of gossip while not revealing any confidential information. Those not involved in the investigation should not even know that there is an investigation going on.

The organization must deal with interim measures in a sensitive and ethical way on a case-by-case basis. There is no one size fits all interim measure. The organization should work with the person being placed on interim measure to find a reasonable situation and reasonable communication about what is happening. Saying that someone is on “sick leave”, when they have been asked to work from home as an interim measure, is not truthful and the person may not appreciate the lie.

Sometimes interim measures may require a complainant or respondent to be removed from the workplace. They are then asked to work from home where possible or placed on a paid suspension until the end of the investigation. Common law decisions have determined that an employer does not have the right to impose unpaid suspensions without an agreement between the employee and the employer or an accepted practice to the contrary.^[4]

According to the Supreme Court of Canada suspensions with pay must meet all of the following requirements:

• The action must be taken to protect a legitimate business interest.
• The action must be made in good faith.
• The interruption in the employee’s work must be temporary, for a “relatively short period” and
• The suspension generally must be with pay.^[5]

Suspensions must be deemed to be required to support a fair investigation and should not be “until further notice” with an indefinite duration. The employee also needs to be advised of the reason for the suspension.

For complaints of sexual harassment, it is prudent to immediately remove one of the parties upon receiving a complaint or knowledge of the situation. It is recommended that the alleged wrongdoer be suspended with pay pending the completion of the investigation. This is to reduce any potential continued harm. Witnesses may also feel that they require interim measures for their participation in an investigation which may potentially bring forth reprisals. These requests should also be dealt with on a case-by-case basis.

Notifying the Parties

All participants in an investigation should receive written notice that they are being called for questioning. If the organization is using an external investigator, it is recommended to have someone who knows or is familiar with the parties contact them to advise them of the investigation. This could be a manager or an HR practitioner within the organization. In any case, whoever notifies the parties will want to provide enough information to help each person participating in the investigation understand the process, but not so much information that the person is overwhelmed.

It is poor practice to simply email a notification letter and information package to the respondent or complainant without any in-person communication. It can be very upsetting to receive notification of an investigation. The person may have immediate questions that they need answered that cannot be addressed in an email. In addition, policies and procedures may be confusing and difficult for employees to understand and they would benefit from an in-person explanation.

For this reason, it is preferable to have a face-to-face meeting to review the complaint and/or the investigation process (especially for the respondent) and in that way the investigator can answer questions that they may have in a timely way. Witnesses will not receive the same level of information as the complainant and respondent so may not require as lengthy a meeting, or may not require a face-to-face meeting at all, but someone should speak with the witness to explain the process and answer questions.

The meeting can be followed up with an information package summarizing all the information discussed in the initial notification meeting. This information package can be provided in the meeting or immediately after. In the event that an external investigator is obtained an HR person should be present for the initial notification meeting. If the workplace is unionized a union representative must be present at the notification meeting.

Below are a few possible notification scenarios for the complainant and respondent:

Scenario #1

The complainant and respondent each receive a written meeting notification that an investigation is taking place, stating the nature of the investigation. If the workplace is unionized the union will also be copied on the meeting notification.

The complainant and respondent meet separately with the investigator and at that time are provided with the applicable policies, procedures, and a copy of the complaint as well as next steps in the investigation.

Scenario #2

The complainant and respondent each receive a written meeting notification than an investigation is taking place, stating the nature of the complaint. If the workplace is unionized the union will also be copied on the meeting notification. The notification will provide a copy of the applicable policies, procedures, and a copy of the complaint.

The complainant and respondent meet separately with the investigator and review materials provided for in the notification package.

Scenario #3

The complainant and respondent each receive a written meeting notification. If the workplace is unionized the union will also be copied on the meeting notification. Nothing is shared in the notification it simply states that their presence is requested at a meeting.  Some organizations will state that it is a meeting surrounding a workplace investigation but will not state the nature of the investigation.

The complainant and respondent meet separately with the investigator and review the policy, procedures, and complaint as well as next steps in the investigation at the face-to-face meeting.

The difference between the three scenarios is when a copy of applicable policies, procedures and a copy of the complaint are provided. The organization’s investigation procedures will lay out how notification of the parties occurs, which may be completely different than the scenarios above. It is always advisable to review the investigation procedure.