Introduction Workplace Investigations

The role of a workplace investigator may be varied and complex.  There are different types of workplace investigators.  Some investigators are external professional investigators that organizations enlist to investigate allegations of workplace misconduct. Others are in-house investigators where their role is solely to investigate misconduct for their organization. Dedicated in-house investigators are normally found in large and complex institutions such as the military, government, and multinational companies.

Most workplace investigations in Alberta are done by neither external professional investigators nor dedicated in-house investigators, but by individuals working in human resource departments who have the appropriate training and background. This is a growing component of human resource management as the expectation and duty to investigate workplace misconduct is increasing. There is also an elevated standard in which arbitrators in unionized workplaces and the courts in non-unionized workplaces expect organizations to conduct their investigations.

Literature and texts in the field of workplace investigations tend to focus on legal professionals who are conducting third party investigations or professional investigators who are conducting general private investigations. Few resources pertain to the human resources professional who will be conducting day to day investigations as part of their role in a human resources department. This course is designed to provide the skills, knowledge and practice to be able to effectively conduct a variety of workplace investigations.

Although workplace investigations have adopted much of their practice and procedures from legal proceedings, workplace investigations are not criminal investigations. The outcome of a workplace investigation into employee misconduct may, in some cases, result in termination of employment, but criminal charges are the sole propriety of the law enforcement. Law enforcement officials will conduct their own separate investigation if alleged workplace misconduct is considered to be a criminal matter.

Workplace investigations may also relate to safety infractions or misconduct that has safety implications. Similar to the handling of criminal matters, workplace safety investigations are under the purview of Occupational Health and Safety who will also conduct their own separate investigations which may result in sanctions, fines or possible incarceration that is separate from a workplace investigation. It is not uncommon for two different types of investigations to be occurring simultaneously into the same matter.

The goal of a workplace investigation is to ensure that alleged misconduct is looked into, a thorough review is conducted, a reasonable and well-founded conclusion is made and the matter is dealt with appropriately.

Why conduct workplace investigations?

We will review the legal requirements to conduct workplace investigations later in the course, but besides the legal requirement, why do organizations want to conduct workplace investigations?

Employees want to work in a workplace that is safe, inclusive and treats workers with respect and dignity. Employees want to know that concerns will be taken seriously and that if there is wrongdoing appropriate action will be taken. The foundation of this is trust; employees want to trust that their organization has accepted the responsibility of drafting comprehensive and current workplace policies and procedures that outline the expectations of all employees when it comes to workplace conduct, harassment, discrimination, and other incidents that may create an unsafe or unfair workplace, and that they will implement those policies and procedures when necessary.

Employers also want to create the best environment for their employees. Employees perform best when they feel that they work in a fair and equitable environment.

It is important that employers take the time to conduct a proper investigation to determine if misconduct occurred and if correction or discipline is warranted. The employer will be required to demonstrate due diligence before taking any action. Disciplinary action taken prior to ensuring that it is justified can result in grievances in a unionized setting and potential lawsuits in non-unionized settings. Due to the fact that most arbitration hearings and court cases are not heard for upwards of a year after a termination, this can mean that the potential liability for wages and benefits can be substantial. Taking disciplinary action prior to establishing the facts of the situation can be a costly mistake and may tarnish the reputation or create additional risk for the organization.

What is a workplace investigation?

A workplace investigation begins when someone (normally an employee) comes forward with a complaint or concern regarding alleged inappropriate behavior or action that has taken place in the workplace. This may be a supervisor who has come to Human Resources with a concern that an incident has occurred, and an investigation is required to determine what happened and if any sanctions are required. An investigation may take place when an employee comes forward with a complaint of discrimination or harassment in the workplace.

Sometimes an employer may have a concern that an employee has engaged or is engaging in misconduct or inappropriate actions or has failed to follow established operating procedures; and they need to gather more information to determine if their concern is valid.  Regardless of the reason or circumstance an employer has the responsibility to launch and complete a robust and timely investigation.

What is the scope of the workplace investigation?

Workplace investigations are confined to matters that may affect the employer/employee relationship and successful continued employment. As mentioned above, depending upon the circumstance a workplace investigation may expand into other types of investigation, but the focus of the workplace investigation is to determine if misconduct occurred that will affect the employee/employer relationship. Has unacceptable behaviour taken place that requires employer intervention, discipline or termination?

It would be simple to say that workplace investigations only focus on whether discipline or termination is the outcome.  Employers also want healthy vibrant workplaces, so the outcome of a workplace investigation may also include training or re-training, mediation between employees, a workplace review to determine the health of an organization, additional or revised policies or procedures or a review of roles or reporting structure to reduce ambiguity.

Typical investigations in the workplace may focus on the following:

• Discrimination
• Harassment and bullying
• Sexual harassment
• Employee conduct/behaviour
• Workplace violence
• Employee performance
• Fraud/theft
• Breach of policy/rule/legislation

What does an investigation entail?

When we think of investigations, we often think of our favorite TV police drama, action packed movies or forensic drama. Workplace investigations are not as adrenalin-fueled and will not be resolved within an hour. Workplace investigations follow methodical procedures to collect evidence, interview witnesses and/or other parties to the incident, review organizational policies, and then create a comprehensive report as to the findings of the investigation.

The strength and clarity of the investigation is often dependent upon the existence of strong organizational policies and procedures. Investigations that take place in the unionized environment will have the added responsibility to ensure that the union is included in the process as defined by the policies and procedures and/or collective bargaining agreement.

Most investigations are going to have the same general process regardless of the type of investigation:

• 1) Determine what is to be investigated
• 2) Seek and collect information and evidence
• 3) Analyze the information
• 4) Establish investigation findings (conclusion)
• 5) Create a report of the findings

The principles of professionalism and ethics in investigations

Human Resources is often tasked with the responsibility of conducting investigations, as such human resource professionals must be well acquainted with the policies and procedures that govern the organization and inform the investigation process. The human resources investigator is expected to act with professionalism and remain unbiased despite being an employee of the organization. Nothing can erode the confidence and trust that employees place in a human resources investigation like poor professionalism and shoddy ethical practices. Human resources investigators must ensure that they abide by the following principles:

• Act ethically, with honesty and integrity
• Demonstrate the highest standard of competence
• Remain unbiased and curious
• Treat all employees and union members with dignity, respect and compassion
• Avoid prejudice, discrimination and stereotyping
• Ensure prescribed policies and procedures are followed
• Seek knowledge and understanding, not to be “right”
• Maintain confidentiality and discretion

While it may seem like the human resources investigator must be perfect, that is not the case. However, they want to ensure that their investigation has rigor and stands up to the scrutiny of those involved within and outside the organization.