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Scott A. McCannHarris & Company LLP
INVESTIGATIONS TRAINING
What we’ll cover
Common Mistakes
Elements of a Proper Investigation
Who should Investigate
Elements of a fair process
Maintaining a Record
Burden and Onus of Proof
Relevance
Common Investigation Mistakes
Common Investigation Mistakes
Failing to plan Failing to conduct a thorough investigation
Ignoring complaints
Delaying investigations
Losing objectivity
Denial of fair process or lack of disclosure
Poor questioning techniques
Failing to reach a conclusion
Failing to create a written report
Elgert v. Home Hardware Stores Ltd.
Facts:
Allegation of “belly-bumping” female coworker
Investigator untrained, first investigation
Investigator long time friend of the complainant’s father
Respondent suspended, then dismissed
Elgert v. Home Hardware Stores
Findings:
No formal complaint;
Inexperienced investigator;
Interview conducted in accusatory fashion;
Particulars not disclosed until after employee suspended.
Investigator biased
Investigator pre-determined result
Result: 2 years salary, and $75,00 punitive damages
Elements of a Proper Investigation
Elements of a Proper Investigation
Timely
Thorough
Impartial
Fair
Purpose of an Investigation
Essential that employer keeps an open mind during investigation
Purpose of investigation not to prove allegations of misconduct
Purpose of an Investigation
Rather, purpose is to Obtain relevant facts
Evaluate facts from unbiased and objective perspective
Determine what happened
Assess what, if any, discipline is warranted based on facts
Sustain the decision
An investigation should . . .
Provide a fair process
Obtain all relevant information
Make findings of fact
Make a sustainable decision based on the facts
When is an investigation necessary?
Is an Investigation Necessary?
First, determine if an investigation is necessary
What is the nature of the alleged misconduct?
If the allegations were true, does it give rise to a disciplinary consequence?
The more serious the allegation, the more comprehensive the investigation needs to be
When to Conduct an Investigation?
Directly observe misconduct
Complaint from employee
Complaint from public or agency
Uncover through chance or random audit
Need to assess whether complaint is credible
Who should investigate?
The Investigation
Who should investigate?
An impartial investigator: No interest in the outcome
Perceived as fair
Not a witness
The Investigation
Ask yourself:
Can I be impartial?
Will I be perceived to be impartial?
Factors contributing to an apprehension of bias . . .
Financial or other interest in outcome
Relationship with persons involved in dispute
Prior involvement in subject matter
Outside knowledge of subject matter
Comment or conduct demonstrating matter prejudged
The Investigation
Can you be an impartial investigator?
Look at: The nature of the particular complaint
Who the complainant is
Who the respondent is
Who the witnesses are likely to be
The Investigation
Policies may include an opportunity for a complainant or a respondent to object to a particular investigator if there is: Clear conflict of interest
Bias or reasonable apprehension of bias
Where an objection is made: Investigator will consider whether to recuse
When to Consider an External Investigator
No suitable impartial person available
Management or senior employee involved
Subject matter highly contentious, serious (i.e.. criminal), emotional, or complex
Where employer’s conduct may be an issue
High demands on your time and/or high likelihood of legal challenge
Planning the Investigation
Decision -making
Internal/External/Impartial?
Who will investigate?
Nature of misconduct? Collective Agreement provisions?Policies? Professional misconduct?
What will be investigated?
What will the process be?
What evidence to gather?
The Investigation
Review
Details of the complaint
Relevant policies
Who to interviewDetermine
Existing documentation
The Investigation
Secure
Any physical evidence
Electronic devices (if relevant)
Video surveillance (if relevant)
The Investigation
DevelopList of essential questions for each interviewee
What facts you haveDetermine
Investigation plan
The Investigation
Interview Order
May be set out in the policy
Complainant
Respondent, except in
exceptional circumstances
Witnesses
The Investigation
Who to interview:
Anyone who might have relevant information on the alleged incidents of the misconduct
Who not to interview:
Those who do not have direct knowledge of relevant information
Elements of a Fair Investigation
Elements of a Fair Investigation
Impartial
Procedurally fair
Thorough
Objective assessment of the evidence
Timely
Procedural Fairness
Absence of Bias
Notice of the Investigation
Notice of the Allegations
A meaningful opportunity to respond
.
Right to respond
A meaningful opportunity to respond to the allegations
- before any decision is made;
- reasonable time to prepare;
- consider right to have representation present
Providing Particulars – how much is enough?
Failure to provide notice of specific allegations compromises fairness
Disclose all: Allegations or evidence that may give rise to an
adverse finding for the Respondent;
Information or evidence that contradicts the information or evidence provided by the respondent
Consider safety issues
Timing of Investigation
Obligation to conduct investigation and impose discipline within a reasonable time
Risk claim of condonation, estoppel or lack of fairness
When Should Notice of Investigation be provided?
Extent of obligation to give notice in Collective Agreement
Premature notice may prejudice investigation (i.e. theft, sexual relationship)
When does obligation arise (i.e. hearsay complaints)
Additional notice if new allegations arise
Maintaining a Record
Maintaining a Record
Keep chronological record of investigation: Dates and times of interviews
Witness statements
A log of telephone calls
Copies of all documents
Careful notes
Maintaining a record
Investigation file should be kept confidential;
Maintain physical and electronic security;
Nevertheless, files may be: subject to disclosure under privacy legislation
subject to compelled production in legal proceedings
Written Statements
Request written complaint or record to frame scope of allegations;
Confirm terms of reference in writing;
In appropriate cases: Value of Written, Signed Witness Statements;
Provision of Statement of Written Particulars;
Interview Notes
Record: date, time, locating and duration of interview
who was present
questions and answers
objections, or refusals to respond
Items for follow up
documentary evidence
Interview Recordings
Provides accurate record of interview questions and answers
Maintains record of demeanor, tone, and body language
May be subject to disclosure requests
Seek witness’ consent to address privacy issues
Burden and Standard of Proof
Standard of Proof
Balance of probabilities (more probable than not that it occurred)
Only one standard of proof in workplace investigations
Where evidence is circumstantial, must consider and determine if there are any alternative explanations for incident other than the employee committed the misconduct
Burden of Proof
Refers to which person or party has the responsibility or obligation to prove a fact or issue
Generally, the burden to prove misconduct or culpable conduct falls to the accuser or the party seeking to rely upon it
In legal proceedings, the burden will always be on the employer to prove that misconduct occurred
Burden vs. Standard
In criminal cases, the burden of proof falls to the Crown, and the standard of proof is “beyond a reasonable doubt
In a wrongful dismissal case, the burden of proof falls to the employer to establish the misconduct, and the standard of proof is the “balance of probabilities
Investigations
In investigations, there typically is no clear burden of proof on the parties
One of the goals of the investigation is to determine, on behalf of the employer, whether the burden of proof can be met such that a disciplinary response is justified
Investigator vs. Judge
The investigator actively uncovers evidence, then weighs and considers it
Whereas, a judge weighs and considers evidence that has been identified and presented by the parties
In some ways, the investigator plays the role of prosecutor, defence and jury in a single investigation
Determining Relevance of Evidence
Relevance
A matter of common sense or experience
Existence of a nexus or connection between two facts
Information from which we can infer the likelihood that an event or activity occurred
Types of Evidence
Most Reliable Forms of Evidence
Oral Evidence
Documentary Evidence
Direct observation
Video recordings
Audio recordings
Proceed cautiously . . .
Character Evidence Evidence that relates not to the events in issue, but
to a person’s character or propensity to commit certain acts
Similar Fact Evidence Evidence that relates not to the events in issue, but
to show that the individual has engaged in similar types of conduct in the past
Con’t
Hearsay Statements Statements made by persons outside of the
investigation relied upon to prove the truth of their contents.
“Jason Uppity told me that Mr. Deek threatened him”.
“Ms. Lovekind told me that Jason looked upset in the office”.
Group Exercise
The ComplaintYesterday, my son, Jason Uppity, told me that he had had an incident with Mr. Deek, the supervisor of the after school program. Jason told me that he and his friends were playing and Mr. Deek took their ball. I understand that Jason knocked a ball out of Mr. Deek’s hands. My son was not being aggressive, rather, he says this was simply in the spirit of play.
In any event, Mr. Deek then followed him across the room and threatened him. Jason told me that Mr. Deek was very close to him when he spoke, and that he felt frightened and was concerned that Mr. Deek might hit him. I understand that Mr. Deek said something like, “if you touch me again, I will break your f_____ neck”.
Jason was told by Mr. Deek to report to the office. Jason went to the office and waited there for over an hour. When Mr. Deek had not come, Jason called me and I picked him up. He was frightened and still visibly upset by the incident.
This incident demonstrates an unacceptable attitude toward our children, and I would like to request that you immediately advise me of what steps you plan to take. As you may know, my husband is a lawyer, and if we are not satisfied with the steps that the Band takes in response to this complaint, we fully intend to take legal action.
Develop your investigation plan
It should address: Process from receipt of complaint?
Who receives notice?
Who will investigate?
Who will be interviewed?
Evidence that should be gathered
Timeline
Any other issues?
Report Back
Initial Steps
Who do you contact first
Notices
Evaluate safety concerns
Appoint investigator – internal / external
Relevant Evidence
Questions?
Scott A. McCannHarris & Company LLP
INVESTIGATIONS TRAINING