11 Chapter 11: The Investigative Report

Depending upon the nature of the investigation there may be different requirements for reporting at its conclusion. In less formal investigations the conclusion of the investigation may be a meeting with human resources, the manager and investigator to discuss the findings. Findings are the conclusions that the investigator has made after looking into the incident; they are the outcome of the investigation. Findings in a less formal investigation may be captured in an email to management or they may be noted in an investigation file or employee file. It is recommended that some written record be made of the findings.

In a more formal investigation, there may be more rigorous reporting requirements. This may include a requirement for a formal report to be prepared at the end of the investigation that will be shared with management, human resources, and the union (if applicable). The investigative report will provide a summary of the investigation, an account of how the investigation was conducted, evidence provided and findings.

Investigative Reports

If we recall the objectives of the investigation.

• Determine what happened in respect to an incident.
• Determine who was involved in the incident.
• Determine the events surrounding the incident.
• Determine if there is evidence to support a claim of misconduct.
• Determine if there was a violation of company policy and procedures, a breach of compliance or a violation of the law.
• Complete a thorough and complete investigation that can withstand scrutiny.

The investigator’s goal is to answer all of these questions; the who, what, where, when, how and possibly why questions. The investigative report captures this information and puts it into a concise format for the employer to review the results of the investigation. Depending upon the nature of the investigation the report may be a simple one-page email, the notes taken at a meeting or it may entail a comprehensive report. For the purposes of this text we will look at a more comprehensive report which can be edited or reduced by the investigator for the specific type of investigation conducted. The following is a typical report format. It is not an exhaustive format and can be altered to suit the type of investigation.

Report Format:

1.. Executive Summary

     a. Mandate / Terms of Reference

     b. Summary of Allegations

     c .Summary of Statement of Respondent’s position

     d. Summary of the Investigation Process

          i. Documents Reviewed

         ii. Witness list

         iii. Physical Evidence Reviewed

     e. Summary of Conclusion

2. Mandate Terms of Reference

3. Background

4. Allegations

5. Investigation process

6. Summary of Evidence

      i .Documentary Evidence – – including witness statements as appendices

      ii. Physical Evidence

7. Summary of Facts not in Dispute

8. Summary of Facts in Dispute

9. Analysis and Findings

     i. Facts

     ii. Definitions

     iii. Power

     iv. Ought to have known or Knew

     v .Reasonable person standard

     vi. Context

     vii. Timelines

     viii. Credibility

     viiii Past Practice

     x. Extenuating Circumstances

10. Conclusion^[1]

1) Executive Summary

The executive summary is intended to provide highlights of the investigation for quick and easy analysis. It is a high-level summary of the entire investigation; normally one page and can be used to provide the core information in a short, concise format. It is a snapshot of the issue under investigation, the process and the results of the investigation. The finer detail of the issue and the investigation will be provided in the rest of the report. The executive summary includes the following elements:

1. Mandate / Terms of Reference – This is where the report reader is told of the objective of the investigation and the scope of the investigation. Basically, what was the investigator’s purpose.
2. Allegations – A list of the allegations made in the complaint.
3. Summary of Statement of Respondent’s position- This is the respondent’s position on the issue. For example, do they deny participation in the issue, accept their participation in the issue or dispute the factors surrounding the issue? What is the position the respondent has taken with regards to their involvement in the issue?
4. Summary of the Investigation Process- a high level summary of the investigation process taken.

• Documents Reviewed- a list of documentary evidence
• Witness list
• Physical Evidence Reviewed- a list of any physical evidence in the case

5.  Summary of Conclusion- This is a short concise summary of the investigation findings.

2) Mandate or Terms of Reference

This part of the report clearly outlines what the scope of the investigation was. This is where the matter investigated is detailed. This is done to ensure that the investigative report focuses on the matter that the investigation was intended to explore, and there is no scope creep.

Sometimes scope creep happens in an investigation. For example, an HR employee is asked to investigate suspected theft of the cash float in one department and finds out that the whole cash management processes of the department is flawed. The investigator will want to limit themselves to the original purpose of the investigation but may in a separate document outside of the scope of the investigation detail their concerns about the cash management practices of the department.

As tempting as it may be to delve into other areas of misconduct or poor behavior, one should limit themselves to reporting on the investigation at hand. That does not mean that the investigator turns a blind eye to other misconduct, but they limit the report to the matter that was intended to be investigated. Other issues or misconduct that surface would be considered a separate matter and addressed through another investigation.

3) Background

The investigator will provide a brief summary of the pertinent background to the complaint, including the context of the complaint such as: nature of the organization, the roles of the parties, the reporting relationship, tenure with the organization.

4) Allegations

A list of the allegations made by the complainant will be listed. It is important when phrasing the allegations that they are noted as alleged events. Failure to provide the wording “alleged” will likely bring into question any bias or foregone conclusions.  As well when listing the allegations do not simply copy and paste from the complaint as there may be inflammatory or unprofessional language.

5) Investigative Process

In this section the investigator will walk the reader through the process that was used in the investigation. Why is it important to detail the processes of the investigation? A description of the process will show that it was in accordance with any workplace policy or procedure. If questioned, this will also establish if the investigation was robust and thorough.

• Detail of the interview process – A summary of the investigation process
• Introduction and explanation of the process to the interviewees- The investigator should detail how they interviewed participants, including what was told to the participants at the beginning of the interview process. This is where it is valuable to have a documented standard opening that is modified depending on the party being interviewed. It is important to disclose what was stated to participants in the interview to establish that the process was an interview and not an interrogation and that no threats, coercion or false promises were used.
• Detail of union representation or other supports present (if applicable) – if the investigation is taking place in a unionized environment, it will be important to state if union representation was present, if an interviewee was entitled to union representation and it was not provided the investigation may be grieved.
• Review of confidentiality requirements – This should outline what confidentially requirements were reviewed with the participants and that the provisions surrounding retaliation were also reviewed. Provide reference to any policies that directed the process.

4) Summary of Evidence– This section of the report is a listing of all pieces of documentary or physical evidence. This includes including any written witness statements that have been provided. This may be a relatively short section if there is little physical or documentary evidence. As well the investigator does not need to re-state any of the witness statements.

a. Documentary Evidence -including witness statements as appendices

b. Physical Evidence

To maintain as much confidentiality as possible in the report witnesses may be identified by a number (e.g. Witness 1, Witness 2) rather than their name, particularly if the report is going to be shared with many levels of management or is subject to a FOIP request. In this case, the investigator should keep a separate list of witnesses and which number they are represented by.

5) Summary of Facts not in Dispute: The investigator will list in point form any facts that were substantiated by two or more witnesses or documentation. These are considered to be facts not in dispute, as these are facts that can be substantiated or supported by more than one person. If presented to the respondent and complainant, they would likely agree that these are facts of the case. The facts will be listed in chronological order for ease of analysis. The investigator should note where a fact is backed up by more than one piece of evidence (testimony or documentation).

In an investigation where it is one person’s word against another person’s word it is not uncommon to end up a very short list of facts not in dispute. This is expected and acceptable. In the absence of documentary evidence, physical evidence, or witness accounts it may be difficult to establish facts that are not in dispute.

6) Summary of Facts in Dispute: Facts in dispute are facets of the case where there are differing accounts depending on the testimony and or physical and documentary evidence. This is the grey area in the investigation. The investigator will identify issues where contradictory evidence was presented; key differences in stories, what interviewees saw, heard, or experienced need to be noted.

Facts in dispute should be listed in chronological order or on the basis of topic and noted where the item came from – complainant, respondent, witness, or relevant documentation. The investigator can also label which allegation the facts in dispute pertain to if there are multiple allegations of wrongdoing.

When reviewing the facts in dispute the investigator needs to look at them with a critical eye. A piece of information may look inconsequential on its own, but when paired up with other points that show a pattern of behaviour it may strengthen the information. Likewise, if contradictory information is located, it may weaken the strength of the information. (Queens 2015)

The investigator will want to pull together the testimony that pertains to the fact and lay out the different perspectives on the item.

The investigator should assess the contradiction based on all the information available. Eventually the investigator will accept one “side” of the fact in dispute.

The investigator may grapple with what information to include in the “facts in dispute” area. There may have many disparate statements and comments, and the investigator may not know whether something is relevant to the investigation. When assessing information for relevance the investigator must determine if the information is directly related to the allegations. Does the information prove or disprove the allegations? If it is not relevant, does it support other information that is relevant? If the information or evidence does neither then chances are it is not relevant to the investigation.

The investigator should note where any contradiction occurs, and which pieces of evidence or testimony may back up one version or the other. They will note which witness may have the same story and which do not and how it relates to the allegations of wrongdoing.

It may be challenging when the investigator has many facts that are in dispute, and the investigator may have gaps of information that will never be filled in. The investigation does not need to be perfect, remember that the standard for looking at the evidence is on the balance of probabilities – or what would the reasonable person think?

7) Analysis and Findings

This section is where the investigator will conduct an analysis of all of the information collected, looking at all of the evidence (documentary, physical and witness). The investigator will identify any policies or legislation that will impact the decision and then apply the evidence to the policies and legislation and determine if there was any breach of policy or legislation.^[2]To begin, they will look at the facts and other contextual elements to determine if an allegation of wrongdoing occurred.

Facts – It is simple for the investigator to consider the facts not in dispute, they are verifiable and can be trusted. It may not be that simple with the facts in dispute. The investigator will look at all of the available information and determine which side of the story they prefer (that is, which is more likely) for each situation where the facts do not align. The investigator will take into account the credibility and relevance of the information and determine which “version of the events” they prefer.

b. Definitions– When conducting the analysis, the investigator will provide any pertinent definitions to help guide the analysis. These definitions may be from applicable workplace policies, procedures, or legislation. For example, if examining whether harassment occurred, the investigator will want to know what the definition of harassment is in that workplace to determine if harassment occurred. Similarly, the investigator wants to know what the definition of misconduct or assault is if that is the matter being investigated. The investigator may want to restate the definition in the analysis to ensure that they are seeking the correct evidence to support any claim of misconduct.

c. Power– When determining what occurred in a workplace the investigator needs to be cognizant of the power dynamics that surround any incident. An investigator should identify any power differentials between people, and note if someone was a subordinate and may not have felt that they could speak out or speak up. The investigator should look at the power of the group versus the power of the individual; for instance, was there peer pressure or other undue influence? When assessing the likelihood of an occurrence, the investigator will want to keep power dynamics in mind. How likely is it that lower power individuals who have maintained a low power position for a long time will take a high-power action in the workplace? An example of this may be an administrative person who has worked in a support role for 12 years, and one day crafts a message as if it is from the president of the organization and sends it out on their own. How likely is this based on the power of the position? It is not impossible, but how likely is it?

d. Ought to have known or Knew– When assessing the actions of employees, the investigator will ask, did the person know or ought to have known that their conduct was incorrect? Has the person been trained or have knowledge that they ought to have known that their behaviour was wrong?

e. Reasonable person standard– The reasonable person standard has been discussed previously in this text. When conducting the analysis of a situation, the investigator may ask themselves, would a reasonable person find someone’s behaviour offensive, a violation of the rules, etc.? Investigators consider the reasonable person, not someone who is super-sensitive or overwrought, but the average reasonable person in the workplace. If an investigator is struggling with the culture of a workplace or the context of an incident, they can step back and consider what would the reasonable person think of this situation, would the reasonable person find someone’s actions or behaviour to be wrong?

f. Context- An internal investigator may have a much easier time understanding the culture of an organization than an external investigator, and they may have better context surrounding a workplace incident. An investigator will want to take the context of the incident into account when conducting their analysis of the situation. Was someone provoked? Is the behaviour commonplace in the workplace? Has the behaviour been tolerated in the past? These are all questions about the context of the incident that need to be factored in when assessing a complaint of workplace wrongdoing.

g. Timelines- What are the timelines of the events? Do they make sense to the average person? Plausibility of the timeline of events may help the investigator to determine witnesses’ credibility or the veracity of witness statements.

h. Credibility – When assessing credibility, the investigator will assess if the person has direct knowledge of the events, if they actually experienced the events or witnessed the events. Does the person have any stake in the complaint, would they gain in any way by the complaint or have direct involvement in the complaint? However, just because something is credible doesn’t make it relevant, and vice versa.

Credibility assessments- The credibility of an interviewee is central to the weight an investigator gives the evidence provided. Given its importance, credibility assessment should not be based on a “gut feeling”, rather these assessments should be based on rational observations that account for the plausibility of an advanced narrative.

Hena Singh in her book, A Practical Guide to Conducting Workplace Investigations notes several factors to consider when assessing credibility. She suggests that when determining             whether an interviewee lacks credibility, the investigator may want to consider the following:

1. The recollection and description of events does not make logical sense.

2. The interviewee provides contradictory or inconsistent statements.

3. The interviewee provides a version or sequence of events and thereafter cannot recall the same version or sequence of events.

4. The interviewee has biases or a motive to provide a certain version of events.

5. The interviewee avoids expressly denying the allegation or specifically answering relevant questions.

6. The interviewee provides answer that are specific to the point of being misleading rather than providing a clear response. Question: “Did you see Louise steal?” Response: “I did not see Louise steal office supplies.”

7. Avoids answering the question, answers a different question, asks the investigator a question in response.

8. Exhibits fake emotion, the emotion comes at a time that does not make sense.

9. Experiences memory failure. Especially when it would put them in a bad light.

10. Mentions that other people will corroborate their version of the events, but those people are not available.

It is important to note that none of the above can be wholly relied upon. This is not also an all or nothing people may be credible with respect to some topics or allegations but not with respect to others.^[3]

Assessing Credibility through Body Language – Good investigators are not sidetracked by trying to read body language as a means to detect lying. Body language indicates emotions, not deception. An investigator should focus on the likelihood of something occurring, rather than trying to determine if a witness is lying because they fidgeted and looked at the ceiling 6 times. Body language is very culturally bound and can be misleading. Gestures and physical responses mean different things in different cultures. In the typical North American culture, we perceive people to be deceitful if they do not look someone in the eye when speaking to them, however in other cultures looking at someone directly is considered to be very rude. Just as crossed arms may indicate discomfort or nervousness… but not necessarily deceit. Rather than trying to interpret body language, the investigator should instead look for consistency in the account and the likelihood of an account.

The British Columbia Court of Appeal stated in their decision in Faryna v Chorny that:

“the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.^[4]

What this means is that to test a witness’s story one must look for consistency between the likelihood of the scenario and what the person is saying. Look at it from the perspective of a practical and informed person. Would this practical and reasonable person think that the story is reasonable given the place it occurred and the conditions in which it occurred?

Credibility when people work together – In cases when complainants have worked together in crafting their complaints, their credibility has been affected in the courts. It may plausible that individuals have experienced the same discrimination or harassment in the workplace, and they may even experience it from the same person or people.  However, arbitrators, judges and adjudicators want to see complaints that are based on individual experiences, not influenced by others.  Complainants should be encouraged to record their own experiences rather than those of others or be influenced by what others have experienced. That said, sometimes there is “strength in numbers” but there can also be “group think.”

Just as it is not uncommon to receive a rush of complaints after an anonymous hotline is set up or discrimination or harassment training takes place in an organization, it would not be uncommon for people who felt that they did not have the power to make a complaint as an individual to feel empowered once they hear that others are making complaints.

Ideally, one wants to have complainants record or share their own experiences uninfluenced by others. It is okay that there are multiple complainants, but ideally each person will provide their own account of what happened, and not be influenced by others.

Analysis of the Facts is Dispute – In the face of contradictory evidence, an investigator must make a conclusion. They will look at the relevance and credibility of the information. The investigator will weigh the value of the information provided; they need to determine how important the evidence is. Then the investigator must make an assessment on the balance of probabilities whose testimony they prefer, in essence the investigator is saying “I believe this person’s information”. In the facts section of the analysis it is not enough to simply say that the investigator prefers one version of events over another, there should be rationale as to why one person’s testimony is preferred over another. The standard used will be the balance of probabilities, and the investigator should specifically refer to the standard. They can preface their statements in such a manner that evokes the standard when resolving contradictions in evidence.

              I.e. “Based on the evidence presented on the balance of probabilities ……..”

                   “When reviewing the evidence through the lens of the balance of probabilities…..”

It may also be that there is simply not enough information to conclusively say one way or the other so the investigator can state that there was insufficient evidence to support whether a fact happened or not.

 “Based on the witness testimony and office supply order receipts, it is found, on the balance of probabilities, that it was commonplace for employees to utilize office supplies for home use. It is found that the respondent also utilized office supplies purchased by XYZ company for personal use.  There was insufficient evidence to substantiate whether it was the respondent who “stole” the printer cartridges.”

i. Past Practice – When an investigator is faced with the problem of conflicting statements it may be helpful to look at past practice of the organization. What is the past practice, what has happened in the past that may be impacting the current situation? Have the supervisors in the past condoned something so that it is reasonable that it could have occurred again? What has happened in the past that employees have used as a guideline for future actions?

J. Extenuating Circumstances- When conducting the analysis of what happened, the investigator may want to keep in mind there may be extenuating circumstances surround the incident. Are there medical accommodation or other accommodation needs that have not been considered? Are there addiction issues or financial duress? Extenuating circumstances may be anything under the sun; the investigator just needs to be aware of them and take them into consideration. Sometimes extenuating circumstances may force employees into taking actions that they would normally never take.

Findings – Once all of the analysis is complete the investigator will make statements of their findings. As mentioned previously, findings are the conclusions that the investigator has made after looking into the incident; they are the outcome of the investigation. A finding indicates that the evidence supports that the person is guilty of a breach of policy or piece of legislation. The investigator must clearly state if there are any findings. They may stipulate that certain allegations are found to be true while others are not. The investigator will make a statement such as.

Finding Statement Sample

•The facts SUPPORT a finding that the Respondent breached the organization’s Respectful Workplace Policy and Organizational Rules of Conduct as stated in the Employee Handbook.

•The facts DO NOT SUPPORT a finding that the Respondent’s conduct violated the Harassment and Discrimination Policy.^[5]

Utilizing the areas of analysis mentioned above the investigator will need to explain why they came to the conclusion stated in their findings. It is not enough to simply have findings as to what version of events an investigator preferred; they need to justify that position with the information from the analysis. Investigators must look at the facts that lead them to their conclusions, assess the credibility of the evidence and discuss the context, timeline, power dynamics in which the events took place. In addition, the investigator will take into consideration the context of the workplace and extenuating factors as well as whether someone ought to have known their behaviour was wrong and how the reasonable person may view the behaviour.

Being Definitive – When making a final decision in the matter the investigator must be very clear as to their findings and that they are able to justify their decision on the balance of probabilities. The investigator needs to be confident in their abilities.

The company or organization may or may not take action based on those findings. This is risky because the findings will be relied upon, but we know that the courts do not require workplace investigations to be perfect. A mediocre investigation is always better than no investigation.

8) Conclusion

The conclusion restates a summary of the findings. It should be short and to the point. The conclusion will not have any new information; everything in the conclusion should already be stated in the report.

Unless specifically asked to do so the investigator will not give their opinion about the situation or any suggestions as to what should happen to the parties involved. That remains up to the managers and human resources.