Conducting Effective Workplace Investigations

December 7, 2016

Sarah E. Graves, PartnerMathias Link, Partner Fasken Martineau DuMoulin LLP

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Introduction and Overview

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Agenda

• The Importance of an Effective Investigation• Planning the Investigation• Conducting Effective Interviews • Reaching Conclusions & Report Writing

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When is an Investigation Necessary?

• Human rights legislation• Duty to provide discrimination-free workplace• Do you need “a complaint?”

– Origin of allegations: employee, consumer, third party– Form of Complaint

• Termination for just cause• Policy violation/compliance issue• Criminal or regulatory wrongdoing• Occupational health and safety

• Accident, bullying, or violence• Harassment, sexual harassment (Bill 132)

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Just Cause Investigations

• Termination for just cause• “The capital punishment of employment law”

• Employer must properly investigate:• To prove misconduct actually occurred; AND• Rebut allegations that termination in bad faith

• Closer the allegation to criminal conduct, more vigorously courts scrutinize the investigation

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Investigations Under Scrutiny

• Decision-makers looking at investigations in detail

• Don’t expect perfection – reasonableness– Was the investigator trained?– “in my opinion [HR] tried to be as fair as their limited

experience in the field permitted, but they lacked the necessary training … basic fundamentals weren’t met and therefore the investigation is tainted.”

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Investigations Under Scrutiny

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• Scrutiny (cont.)– Has the investigator reached reasonable findings of

fact?– Has the investigator properly documented the

investigation?– Is the investigator prepared to recommend prompt,

effective action to remedy the misconduct?

Employer Responsibilities

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Policy and Complaint Procedure

•Distribute policy to employees and sign-off

•Train managers and supervisors on the policy and procedure

Investigation

•Treat complaint with seriousness, promptness, sensitivity and make reasonable findings

Follow-up

•Appropriate corrective action •Document follow-up

Goals of the Investigation

• Reasonable investigation• Understand and follow mandate• Comply with legal requirements • Provide defence to legal claims (e.g. wrongful

dismissal, arbitrations)• Support good workplace climate

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Your Role as an Investigator

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• Know and follow investigation policy• No biases

– “Regrettably, Mr. X, untrained in investigations, began his [investigation] with the firm belief that the plaintiff was a wrongdoer.”

• Prompt and thorough; fair/appropriate in the circumstances

• Good listener• Attention to detail

Your Role as an Investigator

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• Reach reasonable findings of fact• Properly document the investigation – organized

– “He destroyed his original notes and presented only a summary…that contained inaccurate exaggerations of the evidence.”

– Hallmark of a careful investigation is the file – Best practice: Keep running log of all steps taken– Code of Practice on Record Keeping

Investigations: Step-by-Step

•Receive the complaint

•Plan, Plan, Plan

•Conduct the investigation

•And the decision is…

•Document the investigation

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Preparing for and Planning anInvestigation

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Receiving the Complaint

• Recognizing a complaint• Your opening:

– Allegations taken seriously– Your role and process– Confidentiality – Reprisals

• Get as much detailed information about the complaint as possible – Ask for documents and get list of witnesses

• Be sensitive• Listen impartially – Take off your HR/advocate hat• Ask open-ended questions

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Receiving the Complaint

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• Follow-up– (“not eliciting details regarding the complainant’s concerns about sexual

conversations.”)• Ask “is there anything else?”• Meet with the complainant and get sign-off on his / her complaint

– Notes/Written Statement– Use precise, accurate language– Record all relevant facts and dates

• Record what witness says – do not paraphrase– Do not include commentary or impressions

• Sign and date notes• To record of not to record? Generally avoid; no secret recordings• Closing

Avoiding Reprisal Claims

• There can be no merits to the complaint, but still merit to the reprisal claim

• Explain consequences of reprisal to managers

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Key Issue Spotting

• Identify the Allegations• What specific issues are raised?• What laws are implicated?• What policies and practices are implicated?• Collective Agreement• Immediate Action Items

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Immediate Action Items

• Who needs to be informed?• Identify objectives, scope and mandate• Privilege?• Privacy Issues• Workplace health and safety?• Publicity?• Damage to the brand?• Police involvement?• Preservation of evidence?

– Litigation hold to ensure documents not destroyed– Understand document retention policy – Ensure safe storage of evidence

• Interim Steps

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Police Involvement

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• Case-by-case basis– But at what stage?

• Risks– Do not threaten criminal proceedings

• S. 346 Criminal Code• Ethical obligation

– Pate v. Galway Cavendish, 2011 ONCA 329– Relinquish control of the investigation and ability to

resolve matter discreetly

Gathering Evidence

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•Documents and Other Means•Personnel files •Time cards•Email •Expense files•Acknowledgements of policy / training•Criminal transcripts•Cameras/video•Social Media/Text messages

Collecting Oral Evidence

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• Who will you interview and in what order? (additional witnesses may be identified as investigation progresses).

• Prepare a script? (Do not be tied to your outline).• Consider interview time/location/atmosphere

– Private and comfortable – Goal is to build rapport with interviewee and get them talking

• Allow sufficient time for interviews– Typically longer than initial estimate

Building a Response Team

•Internal or external investigator?•Internal•Minor issues that can be resolved without discipline or sanction•Policy violations that won’t result in liability

•External•Violations of law or policy exposing company to civil or criminal liability•Particularly sensitive issues•Complaint involves senior management•Consider nature and severity of allegations, position of alleged wrongdoer, privilege issues, cost.

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Building a Response Team

• Who will oversee the investigation?– In-house, external, or independent counsel?

• Special skills required?– Forensic accountant, IT specialist, etc.

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Planning the Investigation

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• Privilege takes planning– Critical role of counsel (in-house or external)

Solicitor-Client Privilege

Legal advice;Where client

intended communication to be

confidential; and

Communication must not have had an illegal purpose

Three-Part Test: Communications concerning…

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Litigation Privilege

Prepared for the dominant purpose

of litigation; and

Where litigation is pending or reasonably anticipated

Two-Part Test: Protects documents, communications and work product…

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The Investigation Process

Establishing Privilege

•Clear Mandate – Impacts Privilege•Deputizing memo/retainer letter•Use language indicating advice and/or analysis

•Document protocol•Mark documents as privileged•How to handle drafts, summaries, reports

•Generating work product•E-mails

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Focus on Sexual Harassment

• Ontario government actively targeting the issue• “It’s Never Okay: An Action Plan to Stop Sexual Violence

and Harassment” includes:– elimination of the 2-year limitation period for civil sexual

assault claims– changes to the Occupational Health and Safety Act

which increase and add to employers’ obligations• Promoting strong Internal Responsibility (IRS)

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Focus on Sexual Harassment

• New Code of Practice for employers to assist with compliance with the law https://www.labour.gov.on.ca/english/hs/pubs/harassment/index.php– “One way in which employers can meet the legal requirements”

• Special enforcement team of inspectors

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Changes to the Occupational Health and Safety Act (“OHSA”)

• Workplace harassment policy and written program regarding workplace harassment that includes “workplace sexual harassment”:– Procedures for workers to report incidents of workplace

harassment, including where alleged harasser is employer or supervisor (“not under direct control of alleged harasser”; “member of Board of Directors, consultant of another person.”)

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Changes to the Occupational Health and Safety Act (“OHSA”)

• Set out that information obtained will not be disclosed unless disclosure is necessary for investigating or taking corrective action or required by law– “While the investigation is on-going, the worker has

allegedly experienced harassment, the alleged harasser(s) and any witnesses will be instructed not to discuss the complaint, incident or the investigation with other workers or witnesses unless necessary to obtain advice about their rights.”

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Changes to the Occupational Health and Safety Act (“OHSA”)

• Information regarding how employees will be informed of investigative results and any corrective action taken (must now be communicated in writing to complainant and respondent) – “The results of the Investigation are not the same as the

investigation report. The results of the investigation are a summary of the findings of the investigation.”

– “The results must be communicated in writing within ten (10) calendar days of the investigation being concluded to the worker who has experienced the alleged harassment.”

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Changes to the Occupational Health and Safety Act (“OHSA”)

• If there is a joint health and safety committee or health and safety representative at the workplace, employer must consult about the program

• Code of Practice on Record Keeping – Include in program how employer will keep records of all complaints or incidents of harassment; types of materials specified (OSHA – one year record retention).

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Changes to the Occupational Health and Safety Act (“OHSA”)

• Employers’ duties to protect workers from harassment:– Conduct appropriate investigations

• Section 32.0.7– “To protect a worker from workplace harassment,

an employer shall ensure that,» (a) an investigation is conducted into incidents

and complaints of workplace harassment that is appropriate in the circumstances; (emphasis added)

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Changes to the Occupational Health and Safety Act (“OHSA”)

• Code of Practice:– “Some matters will not require a lengthy investigation (for example,

where a bar patron is harassing staff or if there is a complaint that does not, on its face, pertain to workplace harassment). Other situations, such as those involving allegations of sexual harassment by a co-worker over a period of time, may be more complex.

• Written communication of results and corrective action• At least annual review of workplace harassment programs

to ensure that it adequately implements the policy

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Changes to the Occupational Health and Safety Act (“OHSA”)

• Gives Ministry inspector the power to order an employer to retain, at the employer’s expense, an impartial and qualified third party to conduct a harassment investigation

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Changes to the Occupational Health and Safety Act (“OHSA”)

• Revise workplace harassment policies/programs by September 8, 2016

• Sexual harassment not only a human rights issue but workplace safety issue

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Key Mistakes

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Failure to act at all or take it seriously

Failure to train investigators Failure to plan

Poor file Not prompt and/or thorough

Not opportunity to respond

Failure to keep complainant

informed

No follow-up/decision not implemented

Conducting Effective Interviews

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Practical Interview Skills

• Funnel or Pyramid Technique

– Open Phase– Clarification Phase– Closing the Door

• Active listening

• Assessing credibility

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Open Phase

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• Open-ended questions• Learn all relevant evidence the witness has

– Encourage the witness to talk• Summarize the answer so witness can give you

the facts that might have been left out

Clarification

• Get the details – W-5• Try not to interrupt• React neutrally at all times• Explore basis for interviewee’s conclusion

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Close the Door

• Get the final answer• Listen to the witness• Exhaust the subject?• Is there anything else?• Have you now told me everything you recall

about…?

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Before closing the interview…

• Confirm details witness has provided• (Optional) Review notes with witness• Confidentiality agreement?

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Handling Difficult Witnesses

• Stay calm/neutral to avoid increasing hostility• Avoid badgering questions

– BUT do not shy away from tough questions

• Make it clear that you will end the interview and proceed in absence of his/her evidence if:– Witness is highly argumentative– Witness is obstructive– Witness refuses to cooperate

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Handling Difficult Witnesses

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• Listen actively and neutrally to difficult witnesses’ version of events– Listen for inconsistencies and challenge based on information

already obtained• Do not accept “I would never do that”

– Ask what happened in this instance • If witness avoids a question, make a note and come back

to it later• Remember, no reprisal for having complained or

participated in investigation only– No protection for lying throughout same

Other Challenges

• What if witness wants a lawyer?• What if witness wants to bring friend? Family member?• What if interviewee cancels or withdraws participation?

– Explain role of investigation in company’s legal duties and that findings may be made without his/her input

– Reaffirm protection from reprisals

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Reaching Conclusions and Reporting

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Concluding the Investigation: Saying When

• Is the question answered?• Satisfied that investigation is…

– Procedurally defensible?– Substantively defensible?

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Determining Credibility

Consider…

•Veracity•Memory•Manner•Perception•Corroboration / Lack of Corroboration?•Consistency•What else is going on in the workplace?•Does the story make sense?•Review all the evidence

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Credibility Determinations

• Does the interviewee have…– Direct or indirect knowledge of matter?– Any motive to misrepresent information?

• Look for:– Contradictions with own or other versions of events– Changes in story, no matter how minor– Methods to independently verify story

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Credibility Determination

• Don’t underestimate “gut” reaction!• Your “gut” may pick up on subtle things like…

– Body language– Eye contact– Hesitation in delivery

• Above all, does the person’s story make sense?

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Investigation Report

• Components:– Executive summary– Background to complaint– Overview of investigation process

• aka “methodology”

– Allegations and findings– Conclusion– (If mandated) Recommendation– Mark it confidential– Mark it privileged

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Investigation Report

Code of Practice

•The investigator must prepare a written report summarizing the steps taken during the investigation, the complaint, the allegations of the worker claiming harassment, the response from the alleged harasser, the evidence of any witnesses and the evidence gathered. The report must set out findings of fact and come to a conclusion about whether workplace harassment was found or not. The report must be provided to the employer, supervisor or designated person to take appropriate action.

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Best Practices

• “Just the facts”– No opinions– Recommendations? Consider mandate.

• Assess each allegation separately

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Best Practices

• Clearly state how interviewee came by his/her knowledge of matter

• Be sure all relevant evidence is considered• Keep your audience in mind• Who gets a copy of the report?

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Common Mistakes in Report Writing

• Omitting reference to evidence because of view that not relevant

• Forgetting to “show your work”– Connect each dot for the reader

• Opinions on value judgements

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Common Mistakes in Report Writing

• Over-emphasis on similar fact evidence• Over-emphasis on character evidence

– Red flag for evidence of bias or prejudgment

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Orally Reporting to the Parties

• Keep it short, sweet, and scripted• Limit opportunities for questions• Have a witness present, if possible

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Questions?

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Thank You

Sarah GravesPartner+ 1 416 865 4474 sgraves@fasken.com

Mathias LinkPartner+ 1 416 943 8977 mlink@fasken.com

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