Ethical & Practical Issues in Managing Internal Investigations
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Transcript of Ethical & Practical Issues in Managing Internal Investigations
PRACTICAL & PRACTICAL & ETHICAL ISSUES IN ETHICAL ISSUES IN MANAGING MANAGING INTERNAL INTERNAL INVESTIGATIONINVESTIGATION
November 8, 2016
• Human Rights Code• Complaints of harassment / discrimination
• Complaints of reprisal
• Termination or Discipline based on Misconduct
• Occupational Health and Safety Act• Violence / harassment
• Fatality / critical injury / accident / explosion/ fire
• Occupational illness
• Workplace Safety and Insurance Act
WHY DO YOU HAVE TO INVESTIGATE?
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• Human Rights Code• Investigation triggered when there is an allegation of
conduct that, if believed, could constitute
• Discrimination
• Harassment
• Reprisal
• Failure to investigate is an independent breach of the Code, even if there is no actual breach of the Code
WHEN DO YOU NEED TO INVESTIGATE?
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• Occupational Health and Safety Act (New Changes)
• Investigation must be conducted into incidents and complaints of workplace harassment where appropriate in the circumstances.
WHEN DO YOU NEED TO INVESTIGATE?
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• When considering termination for cause or misconduct
• Failure to investigate can expose employer to additional damages
COMMON LAW DUTY TO INVESTIGATE
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• Downham v. County of Lennox & Addington• Downham a Salvation Army minister• Assisting a convicted pedophile released from
jail• Accused of trying to get preferential access to
social housing for pedophile• Terminated
FAILING TO INVESTIGATE – PUNITIVE DAMAGES
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• No one interviewed Downham
• No one advised Downham of the information on which County was relying
• Relied on distorted and false information
• Generous notice and $100,000 for punitive conduct
FAILING TO INVESTIGATE – PUNITIVE DAMAGES
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Procedural Fairness• Obligation to ensure investigation is fair
whether investigation is conducted internally or externally by a third party
• Standard is “reasonable” not “perfect”
FAILING TO CONDUCT A PROPER INVESTIGATION
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1. Timing
2. Deciding who should investigate
3. Collection of information and evidence• Interviews
• Collection of documentary and other evidence
4. Preparing the investigation report
BEST PRACTICES TO STRUCTURING A SUCCESSFUL INVESTIGATION
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• Once you receive a complaint or learn of a problem, determine whether an investigation is required and move quickly to commence the investigation process
• Move quickly – how quickly?• There is no set standard for timing of an investigation
• Guidance from Code of Procedure published by Ministry of Labour
• “An investigation must be completed within 90 calendar days or less unless there are extenuating circumstances warranting a longer investigation (e.g. more than five witnesses, key witness unavailable due to illness)”
• If there are valid reasons for a delay, document these reasons and communicate these to the complainant and responding party
TIMING OF INVESTIGATION
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• FAIR, QUALIFIED, THOROUGH AND COMPETENT
• Should never be person who reports to someone who is closely involved (Complainant, Respondent, Witness)
• Qualified (subject matter expertise, training)
• Available (tight timelines)
• Can write and present comprehensively
WHO SHOULD INVESTIGATE?
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• Witnesses may be anyone with information relevant to the conduct in issue/complaint, including:
• Eye-witnesses
• Key witnesses
• Co-workers and supervisors
• Ask Complainant and Respondent for a list of witnesses that may be aware of the matters at issue in the investigation
COLLECTION OF INFORMATION - IDENTIFY WITNESSES
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• Arrange through person’s manager or Human Resources
• Appropriate time and place
• Interview one person at a time
• Representation
• Determine recording technique
• Reference documents
ARRANGING THE INTERVIEW
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• Introductions
• Explain purpose of investigation and why you want to talk to the person
• Make it very clear that the investigation is confidential
• Explain recording method
• Inform witness additional interview may be required
• Provide your contact info for follow up
CONDUCTING THE INTERVIEW
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Do:
• Ask open questions
• Listen and let person tell story
• Confirm understanding of answers
• Ask questions you think you know answer to
• Record questions and answers
• Summary of interview
CONDUCTING THE INTERVIEW
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Don’t:
• Ask leading questions
• Interrupt
• Intimidate
• Act suspicious or surprised
• Assume you know what the answer will be
Refer to Tab 8 of Reference Materials “Sample Interview Questions”
CONDUCTING THE INTERVIEW
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Duty of procedural fairness does not require • Investigator to interview every witness suggested by Complainant or Respondent
• Investigator to conduct a “perfect” investigation. Investigator retains a certain degree of discretion on how to conduct the investigation process (i.e. which questions to ask witnesses and how best to gather information)
• Respondent be provided with enough information to understand the allegations against him/her. No requirement to provide full copies of any reports or statements made against him/her
CONDUCTING FAIR WITNESS INTERVIEWS
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Duty of procedural fairness does require:
• Investigator to interview the Complainant(s) and Respondent(s)
• Allow Respondent full opportunity to respond to allegations
CONDUCTING FAIR WITNESS INTERVIEWS
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• Physical evidence may be collected
• Consider whether to retain an expert to collect evidence (forensic, technology)
• Do not ignore documentary evidence that is readily available or can be obtained through a proper investigation
GATHERING REAL EVIDENCE
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Think about your audience • Who is going to read the report? • Will the report become evidence in a legal
proceeding? Prepare the report with the intent that it may be produced in subsequent legal proceedings
• What is the author’s expertise? Are they qualified to speak to certain aspects of the report?
PREPARING THE REPORT
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Written report should include:• Summary of the following:
• steps taken during investigation
• the complaint
• the response to the complaint
• the evidence of witnesses
• findings of fact
• credibility concerns (if any)
PREPARING THE REPORT
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Conclusion• Standard of proof is the “balance of
probabilities” • Report should include an analysis of how
investigator reached his/her conclusion
Recommended course of action (provided this is within the scope of investigator’s expertise/retainer)
PREPARING THE REPORT
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• Circulation of investigation report• Parties involved are entitled to know outcome of the
investigation but no absolute right to copy of investigation report
• Occupational Health and Safety Act requires that workers involved in a harassment investigation be provided with a written summary of the investigation results (not the full investigation report)
• Circulation of full investigation report should be limited to final decision-makers
INVESTIGATION REPORT
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• Just because a lawyer investigated does not mean that the report is privileged
• Issue: What is the purpose or reason for report: fact-finding or legal advice?
• Scope of retainer • Mandate and actual functions of investigator
PRIVILEGE
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Establishing and maintaining privilege
• Circulation and Communication• E-mails – always copy counsel• DO NOT forward communications to third
parties
• Properly frame the retainer and be clear about the scope of the investigation and mandate of the investigator
ASSERTING PRIVILEGE
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• Hindsight• Leads to misinterpretation and invalid weighting of
evidence• However, hindsight can be a useful tool in learning from an
event
• Bias• Picking an investigator that will be impartial
• Using the investigation as a means to “build a case”
PITFALLS AND TRAPS
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• Other common pitfalls found in reports• Dismissing or ignoring inconvenient information and assumptions
• Not considering reliability of evidence or mitigating factors
• Selective referencing of evidence collected
• Forming opinions or conclusions outside of expertise
• Sharing draft reports prematurely
PITFALLS AND TRAPS
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• Don’t bury your head in the sand if a complaint is brought to your attention
• Don’t rush to judgement. Conduct a fair, reasonable and thorough investigation
• Choose the right person to conduct the investigation - fair, qualified and competent
• Ensure that the investigation report is a well written report that is thorough and sets out not only the facts but the analysis of how the investigator arrived at the conclusion
• Collect documentary evidence, if available, to ensure a thorough investigation. Retain experts to assist to collect data when necessary.
RECOMMENDATIONS
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