Show Notes:

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Lecture Slides:

Welcome everyone. This is Amer Mushtaq from YouCounsel.

When you are instituting a workplace investigation you have to select the right investigator for that particular issue.  It is an important step.  Choosing the right investigator is crucial to the conduct of a proper investigation.  Why is it important to choose the right investigator and what are some of the qualities of the right investigator?  We will talk about that in today’s lecture.  

We begin with our disclaimer that this course is not legal advice so if you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Hiring the right investigator is important. But why is that important? Let me give you some specific answers to that. 1. The investigator has a very high burden and I’ll explain what I mean by high burden; and 2. Secondly, there are significantly negative consequences of a badly conducted investigation.  I will explain that point more in the next slide.

I’m using the word investigator’s burden purposely.  I believe that yes, it is an investigator responsibility to conduct a proper investigation but it is also a burden.  The responsibility is so high that I believe the word “burden” is appropriate.  It needs to be discharged with respect to the investigation; to each employee that is being interviewed; with respect to witnesses; with respect to the accused; and with respect to the accuser.  Sometimes this burden is even higher than a judge’s burden in a court system.

And what do I mean by that? To understand that you need to understand that the investigation process is an inquisitorial process, not an adversarial process. There’s a difference between an inquisitorial process and adversarial process.  Let me explain to you what that difference is. 

Adversarial process: our courts and our judicial system works on an adversarial process system. What is meant by that, is that the judge makes a decision on a case based on competing evidence that is presented to that judge.  In an adversarial system there are 2 parties, one is the plaintiff, one is the defendant. The plaintiff hires his or her own lawyers, so does the defendant. They bring their own evidence to the trial and they present their own case. And what the judge will do is – the judge will look at the evidence of both parties and then decide which party is more compelling—which case is more compelling and may the best case win.  In a court system / in a judicial system the judge has no responsibility to conduct his or her own investigation. 

There may be questions in a judge’s mind that may require further investigation but that’s not what the role of the judge is. It’s an adversarial system.  In an adversarial judicial system, we as a society believe that when both parties (opposing parties) are allowed to present their case to the best of their abilities that there is a level playing field for both parties.  They can both present their best foot forward.  The truth will invariably come out because of the presentation of cases.  The best case will—when the truth will come out. That’s our concept. 

In an adversarial system the judge is not conducting any investigations of the judge’s own will.  It is based upon whatever is presented.  In a way a judge’s job is relatively simpler because whatever evidence is presented before the judge, the judge has to choose between the competing evidence before him.  Whichever one makes sense, whichever one is more compelling the judge rules in that party’s favor.

In an inquisitorial process the investigator has the burden to search for the truth.  When you hire an investigator there are no competing versions.  The competing versions are to be determined by the investigator himself.  The investigator will talk to the accused; will talk to the accuser; will talk to the witnesses; will look at the documentary evidence and then determine what the truth is.  The role of the investigator is much higher.  The burden is much higher in an investigative process because it is the investigator’s job to search for the truth.   In an adversarial process the judge will invariably rule in one party’s favor—either the plaintiff will win or the defendant will win.  One of the 2 parties has to win based on the competing evidence they are provided. 

In an inquisitorial process it is possible in some cases where the investigator may conclude (having reviewed all of the evidence, having spoken with all of the witnesses) that there is no factual determination of who did what in terms of being wrong.  Who committed an offense; who committed harassment; who committed a mistake that warrants some sort of punishment—the evidence may lead to lack of conclusion.  It is possible in an investigative process whereas in an adversarial process (in a civil court system) there’s always one party that is going to win and one party that is going to lose.  In the inquisitorial process the entire burden comes on the investigation. Yes, the investigator is going to ask the witnesses to provide their evidence and what not but at the end of the day it is the investigator’s job to look for more evidence. If the investigator needs to search for more then, the investigator needs to take the investigation in the direction that it ought to go. All of these decisions lie with the investigator to conduct a proper and thorough investigation.

What are some of the consequences of a badly conducted investigation? The major consequences are legal consequences.  A badly conducted investigation will not hold when challenged in a court.  If the matter goes to court and in that court process the investigation that was conducted is also examined by the court system and if it is not properly conducted, it is not legally defensible.  Then it may end up harming the company or the employer more than having not conducted an investigation.  A badly conducted investigation has legal consequences.

It has, obviously, economic consequences. It costs money and resources to conduct a workplace investigation.  If you conduct a bad investigation or you hire an incorrect investigator then the investigation you have conducted may not be proper—you have lost your time and resources for that.  Obviously, there are workplace consequences if the investigation is conducted badly.  That means that the truth has not been properly determined; that means that proper legal actions may not be taken; that means the wrong party may have been disciplined—all those consequences flow from a bad investigation.  Therefore, rather than repairing the workplace, rather than repairing the relations, the investigation has now harmed the workplace process.

With that in mind with the importance of hiring a good investigator (a proper investigator), what are some of the essential qualities of an investigator? These are essential qualities and I believe that the investigator has to have these qualities. (1) The prime (the most important) one is neutrality. An investigator must be neutral and I’ll explain this in more detail. (2) Secondly. Competence—the investigator must be competent in conducting an investigation. (3) The investigator should be able to do his or her job efficiently.  

(1)  Let’s talk about neutrality. 1st thing about neutrality—which obviously makes sense, is that there should not be any conflict of interest for the investigator. This is a scenario that often may be present when the company is hiring an internal investigator. When a subordinate employee has made an accusation of some sort against the manager it is obvious that the manager should not be the one conducting that investigation or should play any significant role in that investigation because the manager has a conflict of interest.  Sometimes the manager’s manager (the manager’s own boss) may have an indirect conflict of interest because the investigator’s boss may have some interest in protecting his or her own manager as opposed to the subordinate worker who has filed a complaint.

A conflict of interest is an important factor and the investigator (1) should not have any conflict of interest either actual or perceived. There should not be any conflict of interest on part of the investigator to make sure that the investigator is neutral and unbiased. (2) Secondly, there shouldn’t be any circumstances that should lead/cause undue influence on the investigators ability to conduct investigation.  One of the things that may occur in places where investigator and the parties who will be investigated or the accused or the accuser know each other / work in the same company even though they may not know each other directly, there may be some undue influence.  We know that workplaces have their own dynamics. They have their own cliques; they have their own relationships which do play a role in terms of various decision-making that occurs within the workplace environment.

That may all be fine with respect to day-to-day issues.  When it comes to an investigation there should not be any undue influence on the investigator. Undue influence could be in subtle ways.  For example, a human resources person who may be conducting an investigation may have friendship with the manager who has some interest in the outcome of the investigation. That relationship (social relationship) may cause some undue influence with respect to the conduct of the investigation.  It is important to ensure that there is no undue influence on the investigator to conduct an investigation in an impartial and unbiased manner. (3) Thirdly there should not be any prejudice or preconceived judgments about what may have happened with respect to the issues that are being investigated. I think that part is again very important when internal investigations are conducted by employees—either by employees from human resources or other employees within the organization.

I will explain this to you by way of an example. Many years ago I used to be a naval officer. The way it works in the Navy is that if a sailor is charged with an infraction – for that infraction the judge is usually the commanding officer who listens to the charge.  The regulating officer presents the charge; acts as a prosecutor; the sailor’s officer (departmental officer) becomes the defender.  Then the charge is presented and the commanding officer makes a decision.  On a small ship of 50 to 60 people, everyone knows everybody else.  When a sailor is charged, it is obvious that, that sailor’s background, his social relations, his interactions, his general impression in the workplace is known to everyone. I remember in one case I was defending one of my sailor’s who was not very well liked within the ship’s company.  He was socially awkward. People didn’t like him he was not very presentable. His social demeanor was not very well liked. Nothing to do with his legal defences but he was just not liked—including myself.  Even though he was in my department I did not like him. 

I had to defend that sailor when the charge was presented and the sailor had to step forward.  What I did at that time: I presented a different sailor to come and step forward even though my sailor was being called.  When my sailor’s name was called the sailor who actually stepped forward was a different sailor.  This was a sailor with the same rank but he was very well liked. He was very well respected within the ship’s company.  He stepped forward and my commanding officer was obviously puzzled. He looked at me and he asked, why is this sailor here? I believe the charges are against a different sailor.  I then told my commanding officer: I have brought the sailor just to make a point. When you are considering the charge against my sailor, I want you to keep in mind this sailor who is a good sailor when you are awarding the punishment because when you think of my sailor he is so disliked in the ship’s company that I worry that when awarding punishment it may be disproportionate to the charge that he is being charged for (with the infraction that he has committed) and so I just wanted you to think about this nice sailor rather than my sailor when you’re awarding the punishment. 

The commanding officer smiled and he said: “I take your point”. He said, that look if you had not made this point, I suspect I may have been a bit harsher on your sailor because I agree that no one likes him. Prejudices come in very subtle forms—especially with people that we work with or the people we know—we know of their impressions through work—whether they’re favorable or unfavorable.  These kind of issues about neutrality and conducting and unbiased investigation become crucial when the investigator is an internal investigator who has knowledge of the parties or may have knowledge of the parties through other people.

(2) Competence. Obviously the investigator needs to be competent. One of the things that the investigator has to have is a good understanding of law. If the investigator does not understand the law there will be difficulty in conducting a true fact finding mission. I’ll explain that further down.  The investigator needs to understand policies and procedures. If there are workplace policies that are at play with respect to that investigation, an investigator needs to have a very good understanding of those policies before he or she conducts that investigation. Now talking about understanding of law—there is an important point that I want to make and that is that oftentimes fact finding is driven by underlying legal issues.  Even when you are trying to find some facts the way you ask questions; the direction of your inquiry; how deep do you go with respect to asking questions is often informed by the legal issues that you’re grappling with.

Let me explain that by giving you an example. Let’s say that you’re investigating a complaint from an employee who says that he was discriminated because of his disability—the employer failed to accommodate his disability issue.  The disability issue he says is that he had a back pain problem for the last several weeks and the employer still asked him to perform certain tasks that he should not have done because of his backache. When you are conducting an investigation to determine whether there was a breach of the Human Rights Code, whether there was discrimination or not, you obviously, on the basis of common sense will 1st of all find out whether that employee indeed had back pain or not. You look towards medical evidence or other evidence to confirm whether that individual had back pain. 

Then the 2nd inquiry on the basis of common sense you may ask is whether the employee asked for any accommodation. Whether the employee went to his manager or went to the human resources and asked them that look I have a back pain can you not assign me those duties.  Let’s say the answer is no.  The employee says no, I never went to my manager or I never went to human resources to ask for any accommodation.  Based on common sense, your inquiry may stop right there because common sense will say: well he never asked for it how is he going to get the accommodation. Make sense? You want accommodation on the basis of disability you have to go ask for it.  It will not be divine on the employer to provide you that accommodation unless you ask for it. 

If you understand the law, your inquiry will not stop there because you would know that at the next level of inquiry you need to determine whether regardless of the employee asking for accommodation or not whether the employer had any knowledge that the employee had disability issues or back issues. If the employer had some knowledge then the law imposes a procedural obligation on the employer to inquire whether the employee may need some accommodation and to follow it. That understanding or that factual inquiry is now driven by your understanding of the underlying law of discrimination. Absent that understanding your inquiry may not go deeper; your inquiry may not go in the direction that an appropriate inquiry should go.

Just to give you a clear understanding, there is actually a case in our jurisprudence on those facts.  An employee who had worked for a car dealership or something and he had this back pain issues and he never asked his manager to accommodate him because of his back pain.  He was clearly seen leaning by the walls most of the day because of his back pain issues.  He was obviously seen in pain and his manager actually acknowledged that he understood the employee to be suffering from some sort of back pain but because the employee never asked for an accommodation he never took any initiative in providing any accommodation. 

The important point is that fact finding oftentimes is driven by underlying issues.  If the investigator is unclear about the law; does not have the full understanding of the law, even though the investigator’s mandate may be limited to finding only the facts—the facts that the investigator may uncover may not be complete.  It is an important thing and I kind of find this to be an issue of competence that the investigator needs to have the understanding of law and the underlying policies to properly conduct an investigation.

(3) With respect to efficiency: An investigator needs to conduct timely investigation. When you hire an investigator you need to make sure that the investigator has sufficient time to allocate towards an investigation because it is important both legally as well as otherwise that the investigation is conducted in a timely manner. Part of efficiency is the investigator’s ability to dig deeper when warranted.  When investigator is asking questions then based on the answers provided, based on the evidence that is presented, sometimes the evidence leads to certain other issues that may need to be investigated further.  The investigator needs to figure out based on its mandate—based on the issues at hand, does it make sense to dig deeper or not.  This is sort of a judgment call and again the investigator needs to be able to do that efficiently.  Similarly, the investigator needs to have the ability to avoid irrelevant issues that may arise as part of the investigation.

I can give you an example. In one of the investigations that I had conducted some time ago where when I was investigating this person who had filed a harassment complaint.  As part of the investigation she raised this issue in my examination of her that she had faced similar harassment from the same employee some 10 years ago.  There is an obvious question now on part of the investigator whether the issue that she’s raising of 10 years ago needs to be probed. If it needs to be probed then to what extent, how deep do you need to go in investigating that issue. These are issues, these are judgment calls that the investigator makes at every step of their investigation.  In which direction the interview needs to go; in which direction the fact finding mission needs to go; what kind of pitfalls to avoid; what kind of issues to avoid; what kind of issues to focus on; what remains relevant based on the mandate that is given to the investigator. Efficiency in conducting an investigation is also one of the essential qualities of an investigator.

To sum it up, selection of the right investigator is one of the most crucial steps in my view. A bad investigator can cause more harm than good.  It is very important to select the right investigator for your investigation. Hopefully, this gives you a good sense of how to hire a good investigator for your investigation and we’ll talk more about these issues in our following lectures.

Thank-you for watching.