1 Chapter 1: Investigation Terminology

Like all areas in human resources management there are certain terms and definitions that accompany investigations. Though this list will not be exhaustive of all the common investigation terms it will provide a solid cornerstone from which to build your investigation vocabulary.

General Terms:

Workplace Investigation– “the activity of trying to find out the facts about something such as an incident by an authoritative inquiry.”^[1] They are the process of collecting evidence to determine the facts of a situation, to establish if there is a breach of workplace policies, workplace procedures or legislation. Workplace investigations are conducted on the balance of probabilities.

Workplace Assessment – an independent third party or the employer reviews the workplace through interviews to determine if there are underlying, issues, problems, or undercurrents that the employer should know about. This is generally a proactive step taken by employers, to address issues or problems at the earliest stage

Balance of Probabilities– this is the standard in which evidence will be evaluated on in a workplace investigation. It is the threshold in which decision making will be held to. Unlike a court of law where the standard of proof is “beyond a reasonable doubt,” workplace investigations have a lower standard of proof. The balance of probabilities is simply a balancing of both sides to determine which side has stronger proof. “The greater weight of the evidence. The evidence that has the most convincing force. It is superior evidence but not so much evidence that it frees the mind wholly from all reasonable doubt. It is sufficient evidence to incline a fair and impartial mind to one side of the issue rather than the other.”^[2]

When looking at the balance of probabilities the reasonable person will ask themselves “what is most likely,” this is the standard in which to evaluate the evidence.

Reasonable Person – The reasonable person is a standard of conduct where one assumes that a person is of ordinary intelligence, prudence and judgement.

Parties to an investigation

The people who are involved in an incident that leads to investigation are generally referred to as the “parties”. There are commonly three types of parties to an investigation: complainant, respondent and witnesses.

Complainant– the person(s) who has/have made a complaint or has accused someone of a wrongdoing. This may be an employee, a supervisor or manager, a member of the public, a contractor or others who have contact in the workplace.

Respondent– the person(s) whom have had a complaint(s) made against them. There may be multiple respondents or a single respondent.

Witness – “someone who sees, knows or vouches for something.”^[3] Witnesses are typically individuals from within the organization. It is difficult to compel external individuals to act as a witness to a workplace investigation, although in some cases an external individual may be willing to participate.

Evidence

In an investigation it is the investigator’s job to collect and analyze evidence. When we hear the term evidence it may conjure up images from our favorite police drama or private investigator movies. In a workplace investigation is likely not that exciting; the majority of evidence that a workplace investigator collects will be testimony from the parties to the investigation. There are different types of evidence that are detailed below.

Evidence – “something (including testimony, documents, and tangible objects) that tends to prove or disprove the existences of an alleged fact.”^[4]

Witness Evidence – a person’s statements or “testimony” garnered through an interview or a written statement. This includes the testimony of the complainant and the respondent as well as witnesses. Basically, it is any statement made either in writing or orally that is provided to the investigator.

Physical Evidence – is physical objects that support a premise or assertion: documents, digital devices (phones, computers etc.) pictures, video, physical objects.

Direct Evidence – is evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.”^[5] Direct evidence supports the truth of an assertion without relying on any additional evidence to establish a fact. Example: video evidence of an employee stealing product. What this means is that the evidence can stand alone on its own without relying on any other evidence to make it “true.”

Circumstantial Evidence – is evidence based on inference and not on personal knowledge or observation. It is also called indirect evidence. This encompasses all evidence that is not given by eyewitness testimony.”^[6] Circumstantial evidence is often used to support an assertion, theory or premise. Example: witness testimony that they saw an employee run away from the scene of a theft. They did not actually see the theft, but their witness account supports the assertion or premise. Circumstantial evidence cannot stand on its own as a fact but when paired with complementary evidence may support an assertion.

Investigation Procedure Terms

Workplace investigations are not conducted by law enforcement and are not the court of law, but much of the terminology and processes used in workplace investigations come from the legal field. Workplace investigations borrow terms that are well known in the legal field and apply them to an employment setting. Investigations must be conducted in a manner that is fair and just, and investigators need to ensure that investigations can stand up to the potential scrutiny of the court system.

Due Process– “the conduct of legal proceedings according to established rules and principles for the protections and enforcement of private rights.”^[7] This idea has been expanded to non-legal proceedings and it suggests that the person who is accused of misconduct has the right to know what is alleged, present their side of the story and state any objections. An investigator must have an established process or set of procedures in which to follow to determine what is likely to have happened. An investigation should not be haphazard or vary in its process from person to person or investigation to investigation.

Natural Justice – “Justice as defined in a moral, as opposed to a legal sense.”^[8] Basically natural justice is fair play in action. An investigator should conduct their investigation in a manner that is equitable and unbiased. Both the complainant and respondent have the right to be heard, the respondent has the right to know what the complaint is and the right to defend themselves. The investigator wants to ensure that there is no perceived bias in their actions and that each party is treated fairly.

Confidentiality – “secrecy; the state of having the dissemination of certain information restricted.”^[9] Investigative proceedings must have confidentiality surrounding them to ensure that the principles of natural justice are preserved. People participating in an investigation must not disclose their knowledge of and activities related to the investigative procedures. This may mean that the parties sign a confidentiality agreement that ensures their adherence to confidentiality. Such an agreement may include a clause that should they break confidentiality they will be subject to sanction.

The integrity of the investigation can be brought into question if there are breaches of confidentiality. People in a workplace will be naturally curious about any incident that is out of the ordinary; to ensure that testimony remains uninfluenced by outside parties, the investigator will want to enforce confidentiality surrounding the process.

There is an old adage in the workplace that “when people don’t know what is going on they will make it up”. As difficult as it may be to have speculation, gossip and hearsay in the workplace, the investigator is limited as to what they may share with the general workplace as this may jeopardize confidentiality and the investigation. As a general rule, the manager or HR professional may state that there is an investigation going on, but any details further than that should remain confidential. Curious colleagues and coworkers will continue to ask questions but it is important that confidentiality be maintained.

Complaint Types Defined

Workplace investigations may be conducted in response to various types of complaints. Sometimes the identification of the type of complaint can be difficult. Below are the definitions for common types of complaints. Complaints may also include more than one type of infraction. It is not uncommon for different types of infractions to be coupled together.

Misconduct Generally speaking, “misconduct” refers to any inappropriate action, offence, or professional fault committed willingly or deliberately by a person while working for an employer. Misconduct occurs when an employee’s behaviour is in violation of the obligations set out in their contract of employment and when, under normal circumstances, the employee should have known that the actions, omissions or faults could result in a dismissal.

“It is not necessary that the alleged action, omission or fault happens during work, at the workplace or even while carrying out duties for the employer. This means that an offence committed outside the workplace could be misconduct when the infraction results in a failure to continue to meet the conditions of employment. For example, a bank teller is convicted of shop lifting and for this reason is fired. Even though the infraction did not happen during work, the employer considers that the employee lost their employment due to their own misconduct, as they no longer meet the integrity condition, an essential condition of the employment.”^[10]

Workplace Harassment – defined as a single or repeated incident of objectionable or unwelcome conduct, comment, bullying or action intended to intimidate, offend, degrade or humiliate a particular person or group. It is a serious issue and creates an unhealthy work environment resulting in psychological harm to workers.

Workplace harassment does not include any reasonable conduct of an employer or supervisor related to the normal management of workers or a work site. Differences of opinion or minor disagreements between coworkers are also not generally considered to be workplace harassment if steps are taken to resolve the conflict.^[11] An employer can investigate harassment if the reasonable person would view the conduct to be harassing.

Workplace violence – Violence, whether at a work site or work related, is defined as the threatened, attempted, or actual conduct of a person that causes or is likely to cause physical or psychological injury or harm. It can include:

• physical attack or aggression
• threatening behaviour
• verbal or written threats
• domestic violence
• sexual violence^[12]

Assault – “any willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability to do so, and any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm.”^[13] Assault does not need to be a physical assault, it can be the threat of bodily injury.

Sexual and Gender-Based Workplace harassment – any unwanted physical or verbal behavior that offends or humiliates another person. This may be committed by a co-worker or manager.

If a manager solicits a sexual or romantic encounter with a subordinate, even if the solicitation is not graphic, abrasive or threatening the solicitation itself could still be inappropriate if under the circumstances the behaviour was unwelcome. …. How do you know if it is unwelcome? Obviously if someone’s indicates that they are uncomfortable, offended or clearly does not want to participate and rejects the conduct. Or sometimes a subordinate is afraid of offending someone in authority and causing a negative reaction. The investigator must determine whether the recipient reasonably found the conduct to be unwelcome, and it is not based necessarily on their outward rejection of the advance. The power differential is the key point.^[14]

Sexual and gender-based harassment not only occurs between subordinates and managers but may also occur between co-workers, employees and contractors or anyone else in the workplace. Any unwanted physical or verbal behaviour that offends or humiliates another person can take on many forms including jokes, gestures, comments, images, or other forms.

Discrimination – discrimination in the workplace happens when a person or group of people is treated unfairly or unequally because of specific characteristics. Discrimination in the workplace can happen between co-workers, between an employee and their manager, with job applicants, or between employees and their employers.^[15]

The Alberta Human Rights Act prohibits discrimination in employment based on the protected grounds of race, colour, ancestry, place of origin, religious beliefs, gender, gender identity, gender expression, age, physical disability, mental disability, marital status, family status, source of income, and sexual orientation.

An employer’s liability for discrimination is not necessarily limited to the workplace or work hours. Employers may be liable for discrimination that occurs outside normal work hours and that has implications or repercussions in the workplace. Employees must ensure they do not indulge in offensive behaviour at the workplace or away from the physical workplace. For example, an employer may be held liable for discriminatory incidents during business trips, company parties or other company-related functions.

Human rights issues arising in a workplace must be afforded an employer’s utmost attention and diligence. Employers have a responsibility to promptly investigate an allegation of discrimination.^[16]