The biggest mistake human resources professionals make in investigations is diving in head first without proper planning, says Miller Thomson partner Nicole Byres.
“You really need to invest time in the front end: who do you need to talk to, how are you going about it, what is the purpose, what are the other risks?” Byres says.
For example, if the main goal is simply to gather information then it may be wise to tell employees that they will not be disciplined for being open. However, if you think discipline is a likely outcome then people should be informed, and should have the opportunity to contact their union rep or counsel.
“The bad thing that happens if you’re not paying attention to these things is that the information you get will be tainted from an evidence point of view so if you do decide to discipline you will often get a challenge because you didn’t have a fair process for that person,” Byres said. “You end up in a situation you didn’t anticipate because at the start you didn’t think through your investigation.”
Protect privacy and confidentiality
A number of cases involve people who were discharged for harassment or sexual harassment and the accused brought a wrongful dismissal case due to poorly conducted investigations.
“Harassment complaints have to be treated with sensitivity. If you don’t keep the process confidential you’ve created a poisoned workplace so they feel they have no choice but to quit and they will sue for constructive dismissal,” Byres said. “Confidentiality is really important because you can’t predict the outcome of what you’re going to find.”
The victim could also bring a case against the company if they feel further victimised by the process. HR may also find employees are wary of talking about anything they witnessed or experienced if they think what they say will become public information.
Byres suggests having the interviews in a discreet location, or offsite if there are no good spaces in the workplace.
Good notes can be the biggest advantage for an organisation. Put typed statements together for any witnesses to sign off on so you can rely on that information in a hearing, which could be a year or more later.
“You need to make sure you have some integrity and can establish the process you went through. If the result is that you fired somebody you want to be able to demonstrate you had a fair investigation,” Byres said. “Keeping records of who you talked to and what your investigation entailed is all part of the evidence of a fair process.”
Take your time
Byres has seen too many cases where the investigator did a very quick investigation, often speaking to the accused last with their mind already made up about what happened.
“The person really doesn’t have a chance to address all the accusations or even understand the allegations against them,” she says. “I’m surprised how often it happens.There are lots of cases of large damages being awarded where the courts will say your evidence wasn’t strong enough and you didn’t even the accused the chance to respond.”
When an issue arises that requires a workplace investigation it can be the start of a long and expensive process for an organisation, especially if HR makes mistakes early on. What can you do to make sure your investigations hold up to scrutiny?