Workplace investigations: Where does HR go wrong?

Culture and talent are usually fundamental to an organization’s success, but the strength of that strategy can be exposed when a workplace complaint or suspicions of workplace misconduct are raised. How an organization sets its approach to investigate such matters can be crucial to minimize legal exposure, reputational damage, and a collapse of trust. 

A key element for maintaining a fair and effective workplace investigation process is a strong HR leader directing the process, says Krista Siedlak, a partner and workplace investigator at Turnpenney Milne in Toronto.  

“What an ideal strategic partner would be doing is they would have a good sense of what the complaint is about and who the parties are,” says Siedlak. “They're available to provide us with instructions... they’re good at assessing the pros and cons of certain situations and then directing us accordingly. At the end of the day, external investigators take direction from the HR leader [or their team], they determine our scope, our mandate, and what kind of report we need.” 

Starting with procedural fairness principle 

“There’s a longstanding principle of procedural fairness, which generally means giving the people involved in an investigation a fair opportunity to respond and know the case,” says Trevor Thomas, co-founder of Ascent Employment Law in Vancouver and a workplace investigator. 

Siedlak agrees that fairness is a starting block for investigations. “We've always taken principles of procedural fairness and due process very seriously,” she says. “With even more of an emphasis on transparency in the investigation process, as the more we build in transparency, the more people buy into the process and the steps that were taken.” 

For senior HR leaders, that means investigations aren’t just compliance exercises — they’re central to credibility. 

As for a good investigations policy, Siedlak says it should not just define misconduct or other things that could trigger an investigation, but also examples, along with clear direction on how to report something and to whom. “Oftentimes, people aren’t sure, so set out examples and who do they go to if they have an issue, and what are the duties of the respective parties during an investigation process,” she says. 

Wrong investigator can cripple HR 

Even when the decision to investigate is sound, many organizations choose the wrong investigator, and Thomas sees leaders tend to skip over one essential question: “The person that we’re assigning to do this investigation, are they the right person for this task?” he says. 

“That question is really important because you want to make sure that person is not biased, if it's an in-house investigation and someone such as the HR manager is conducting it.” 

He points out the risk of bias in a small organization, where there may be limited options and asking the only HR professional to run a contentious investigation can be risky. If things go south, HR can end up “in a position where their role within the organization is now tainted,” he says. “Now you've placed that HR person in a position where people may not feel comfortable going to this person, so you've almost had a chilling effect where the HR person is no longer effective in the role.” 

“For smaller organizations, seriously consider if an external investigator would be a better choice in order to preserve the objectivity and the perception of the HR person that you have already,” adds Thomas. 

Independent investigators impartial, capable 

In larger organizations with bigger HR teams, one person can investigate while others remain untainted, but the bias risk is still there, so an independent investigator is still preferable, says Thomas. 

Siedlak agrees that it’s a better practice to incorporate independent investigators into the organization’s approach, particularly since capability is more important with complaints becoming more complex. She says she rarely sees simple, one-to-one complaints now. Instead, her team more frequently is handling multiple complainants and “cross-complaints” she says. 

“Sometimes third parties are being brought in and those are very difficult to navigate and, sometimes, to set yourself up for success on those very complicated ones, it's worth having a practice of bringing in external parties.” 

“Doing two investigations or processes is never ideal, but I think it builds some type of skepticism into the process,” adds Siedlak. “Just be very careful at the outset to really look at the facts, look at what's being alleged, and determine whether or not it's appropriate to go external or not.” 

One strategic mistake is keeping serious complaints inhouse for too long, she says, citing her work with organizations who, by the time she arrives, have already tried to investigate internally, "and in situations where they’re overly complex, there are underlying politics, or maybe one of the parties is in a high-profile role, the damage has been done.” 

Objectivity and transparency 

It’s also important for HR to maintain the perception of objectivity and transparency, says Thomas, and this means organizations have to follow their investigation policies and procedures precisely so there isn’t a pre-determined outcome. He says he has seen investigators walk into interviews “knowing the answer in your head and manipulating the questions in order to get the person to arrive at the answer that you’ve already created in your own mind.” 

“You want to maintain objectivity while you're assessing the evidence, and you don't want your own personal feelings or bias to come into play here,” says Thomas. “As an HR person, if you ever start to get that ‘spidey sense’ where you're feeling like you're being a bit too personally involved or you're letting your feelings creep in, it might be a good time to step back and say, ‘Am I actually the right person to conduct this investigation?’” 

Siedlak says investigation procedures need to ensure that the investigators are transparent with the parties involved and keep them updated as things are unfolding. “The more that you can dilute the mystery surrounding an investigation, the more it helps the overall process,” she says. 

Documentation that survives a challenge 

Most HR leaders and workplace investigator would agree that documentation matters. However, can is stand up to scrutiny from a tribunal, arbitrator, or court? For Thomas, his regular practice is to keep a journal of the investigation in wh9ich every email, meeting, and decision is logged so he can prove that "from a procedural standpoint, the investigation is sufficient for the purposes,” he says. 

“You can think of it as all these small pieces of a puzzle that come together at the end,” says Thomas. “So when your investigation is finished, you've got this nice puzzle that you filled in all the missing pieces.”  

Siedlak agrees on the importance of setting out the need to document everything as part of an effective investigation policy. “We document all of our witness statements and parties have a chance to review their statements, and that goes back to the principles of transparency,” she says. “When we get documentation from any party, witnesses, or principal parties, we create a document brief which reflects all that documentation and it's all reviewed and logged, so that if it ever becomes part of a production order, we have our whole file intact and organized.” 

For HR leaders, it’s important to be a partner with everyone involved – from investigator, legal counsel, and others involved – to work through the process, according to Siedlak. 

“It's difficult for the organization and it's difficult for all the parties involved, so make sure you have a team that’s educated and aware of the principles and policy, and is set to get you through it.”

This article is part of our Monthly Spotlight series, which in January focuses on employment law. Full coverage can be found here.