12 Chapter 12: Post Investigation
Once the interviews are completed, the investigator conducts their analysis, determines their findings, and writes the report, one would think that the investigation process is complete. For an external third-party investigator, once the report is delivered their role concludes (unless they are subpoenaed, which will be discussed later in this chapter), but for internal investigators who are part of the organization the task is not complete. After an investigation there remains the tasks of notifying the parties, dealing with potential reprisals, and handling any fallout from the investigation process.
Notifying Parties, Witnesses of Completion
Depending upon the workplace policies and procedures it may be the investigator who is notifying the complainant/respondent or employee accused of misconduct, or it may be another HR professional.
As part of the investigation process, the report or results of the investigation are shared with management, and it is management who determines if there is any action warranted. Management and human resources will be responsible for meting out any discipline or sanctions to those involved in the investigation. However, what happens to the other people who are involved such as witnesses? As part of the investigation the internal investigator needs to determine who will be notifying the parties involved and how. Will this be the investigators job or some other HR person’s job?
Regardless of who provides the notification, all parties need to be informed that the investigation is now complete. Different parties receive varying amounts of information as to the outcome of the investigation. For witnesses, the investigator or HR will provide a “form letter”, send an email or make a phone call to advise that the investigation is complete, thank them for their time and remind them of their confidentiality requirements, as well as a reminder about reprisals.
Depending upon the outcome of the investigation the complainant will also be notified. This may be a personal meeting or phone call, followed up with a written notice that the investigation is complete. If the respondent is another employee, the complainant is not entitled to know any potential discipline that may have resulted from the investigation. If the complainant is the supervisor or manager, they will be privy to the results of the investigation.
If the organization is a unionized workplace the union will need to be informed of the results. Depending upon the workplace policies, the union may or may not be entitled to see a copy of the investigator’s report. In some workplaces the union is only provided a summary of the investigation but not the whole report, in other workplaces the executive summary is provided and, in some organizations, the whole report is provided to the union. The union will, however, want to be informed of any potential actions being taken as a result of the investigation. Employee representation will be required if any discipline is being issued.
For the respondent of the complaint, the potential outcomes are quite numerous. If the investigation has resulted in no findings, the respondent should be notified as soon as possible. This is normally through a meeting or a phone call, followed up in writing.
Reprisals
Reprisals are acts of retaliation taken against a party to an incident. Reprisals can happen any time during the investigation process, but they may also occur after the investigation is complete. This is especially true if discipline is an outcome of the investigation.
It is important that all parties are reminded either in writing or verbally about their responsibilities surrounding reprisals. Who deals with complaints of reprisal will depend on the Human Resources structure and the workplace policies as they may be outside of the scope of the original investigation. If the investigation was conducted in-house the original investigator may be asked to look into any situations of reprisal because they are already familiar with the complaint. This is a decision that human resources management will make.
No Findings Fallout
Sometimes an investigation will be conducted on a good faith complaint (not vexatious) and there will be no findings. One would think this is an ideal situation that once the investigation is complete everyone involved will just go back to their regular jobs and work relationships will continue as before. This may be the case with more informal investigations or suspected misconduct where the supervisor/manager has asked for the investigation. However, in cases such as discrimination and harassment where a complaint has been brought forward by another employee this may not be the case. Investigations can be awkward, upsetting and may cause resentment. Human Resources needs to be cognizant of this and be prepared that even though the investigation is complete the parties involved may not be able to simply pick up and move on as if nothing happened. People may feel that their reputation and credibility have been impacted, and despite the best attempts at confidentiality, gossip or speculation about the investigation may have spread. As an employee of the organization, the internal investigator may have specific insight into potential fallout and can work with their HR colleagues to minimize negative impacts from the investigative process.
It is important for HR and the internal investigator to understand that just because the investigation is complete the matter may not be over. Sometimes mediation, alternate working arrangements or different work schedules are required to help people heal the relationship. Ultimately the investigation may have resolved the complaint, but it may not have resolved the relationship.
Bad Faith Complaints
Occasionally the outcome of an investigation will have no findings, but the investigator may believe that the complaint was made in bad faith. A finding of bad faith is reserved for extreme cases where:
The complainant brings forward allegations which they know to be untrue, and they do so with an ulterior, usually malicious motive.
Bad faith complaints should not be confused with unsubstantiated allegations in which a complainant genuinely believed the allegations, but there is insufficient evidence to support. Bad faith is when the complainant brings forward a knowingly false accusation. No one is required to raise allegations of bad faith in order for an investigator to make these findings.[1]
If the investigator believes that the complaint is made in bad faith, they should notify HR of their concerns and bring forward the evidence that supports this conclusion. The investigator may have enough evidence to support a determination of bad faith without completing the entire investigation. It is important to ensure that enough evidence of bad faith has been collected, as complaints of bad faith may result in disciplinary action against the complainant. As mentioned, bad faith complaints are very rare – most complainants genuinely believe there has been some wrongdoing. Even if that allegation is not found to be true it would not be considered a bad faith complaint.
Debriefing the process
No investigation is perfect, and it is important that internal investigators sit down after the investigation and determine what went well and what did not go as planned. They may want to speak with their HR colleagues as to how the process worked. Are there any indications that there needs to be changes to any policies, procedures, or rules? Is it evident that further training in the organization is required or that the culture is not healthy?
The internal investigator should review the situation with a critical eye and discuss with colleagues what could have prevented the situation that resulted in investigation and make any appropriate changes.
Storage of materials
Once the investigation is complete, no matter how big or how small the documents, interview notes, reports and all other materials should be retained. All investigation materials, documents, statements etc, must be retained according to the document disposition requirements of the organization. The documents should be stored in a secured location and not kept with the employee file.
Court Cases, Arbitration and being Subpoenaed
Occasionally an employee feels that either the investigation process was flawed or that the organization’s actions based on the investigation were incorrect. In these situations, an employee may sue the employer or file a grievance in a unionized environment. Some external investigators may also be sued as well, which is why they are required to have liability insurance in the province of Alberta. As the investigator, either external or internal, the investigation materials may be subpoenaed and the investigator may be asked to testify at a hearing or arbitration.
If the investigator is subpoenaed it will be very important that they have followed the organization’s policies and procedures. This is also a reminder to the investigator to ensure that they have not made statements in investigative notes that could be considered inflammatory, derogatory, or accusatory.
What if you get it Wrong?
Sometimes an investigator may come to the wrong conclusion or a conclusion that is later overturned by the courts/tribunal/arbitration. In the case of Mulvihill vs Ottawa the trial judge noted that
The mere fact that cause was alleged, but not ultimately proven, does not automatically mean that Wallace damages are to be awarded. So long as the employer has a reasonable basis to which to believe it can dismiss an employee for cause, the employer has the right to take the position without fear that failure to succeed on the point will automatically expose it to a finding of bad faith.[2]
What this means is that even when an investigation is completed and the investigator comes to the wrong conclusion, and the employer then terminates an employee for just cause (because they believed that either misconduct or harassment occurred) the employer will not be held liable. If the employer did its due diligence in conducting the investigation and acted in good faith the courts/tribunal/arbitrator may disagree and change the decision, but the employer is not liable for damages.
This was evident in the case of Ralph Watkins v Willow Park Golf Course. Mr. Watkins was terminated, but the investigation was insufficient. Mr. Watkins wanted a summary judgement (judgement without a trial) from a judge to throw out the termination, but the judge felt that even though the investigation was flawed, it was not enough to immediately decide if the termination was justified or not. The judge denied Mr. Watkins request to find in his favour and noted that it should go to trial.[3]
Errors in Investigations
As mentioned before, no investigation is going to be perfect, no matter how experienced the investigator is. For those beginning investigating, below are some common errors that investigators make.
- Failing to investigate at all- remember you do not necessarily need a complainant.
- Investigating with bias
- Investigating toward a predetermined outcome
- Failing to interview the complainant
- Failing to interview the respondent
- Failing to provide particulars of the allegations to the respondent
- Rushing the respondent to respond
- Interviewing irrelevant witnesses
- Ignoring relevant witnesses [4]
One needs to remember that even a simple, short investigation may be better than no investigation. Investigations do not always need to be a large, formal affair. Every complaint is different, and the scope of the investigation may vary. What starts out as a small, simple concern by a manager may become a large-scale formal investigation and likewise, what appears to be a complex complaint on the surface may turn out to be a rather simple matter.
