Workplace Investigations - How They Work

A lot of issues recently have arisen surrounding investigation processes. From arguments hinging on inadequacy of an investigation or investigative tunnel-vision, to cases where employers fail to follow the recommendations of the investigator without basis, or questions about the handling of the allegations against Justice Russell Brown.

To Suspend, or Not to Suspend?

While investigating allegations of misconduct, it's important to treat the allegations as unproven until and unless they are established. But at the same time, there are legitimate interests to protect in the mean time, which might require that the respondent be removed from their role on a temporary basis.

These suspensions are supposed to be administrative in nature and not punitive; when the person is in a role where they're paid, they should continue to get paid as normal through the suspension. (In most non-union employment roles, there's no power to suspend on an unpaid basis anyways, and you run the risk of a constructive dismissal action for trying.)

Not every investigation requires a suspension, but factors include (non-exhaustively):

• the nature and seriousness of the allegations;
• any ongoing interaction between the complainant and the respondent;
• whether the allegations include a breach of trust or abuse of authority associated with the role;
• the sensitivity of the organization to the optics of engaging a person accused of such misconduct;
• whether the presence of the respondent within the organization might be seen as pressuring the investigator or witnesses; and
• whether the complaint has, at first glance, any potential to be meritorious.

That last point is a necessary, low-threshold, initial assessment - and it can't be answered on the basis of "I know this person, and he wouldn't do that." It's more along the lines of a gatekeeper assessment to prevent nonsensical complaints from derailing a person or organization: If I make a complaint that my MP (whom I have never met or meaningfully interacted with) was inappropriate to my daughter (noting that...I don't have a daughter), at his constituency office (where I've never been), at a time when he was demonstrably in Ottawa...then maybe that's not a complaint that should be permitted to interfere with anything.

But, short of something that makes it fairly obvious that the complaint can't be meritorious, the rule is that you don't know until the investigation has run its course.

So, ultimately, there are a few interests you're looking to protect by removing somebody from their role, 'just in case', pending the outcome of the investigation: Protecting the complainant from further misconduct or reprisals; protecting the integrity of the investigation itself; protecting the organization and others within it from possible further misconduct; and protecting the reputation and integrity of the organization.

The CJC Inquiry into Russell Brown

So let's look at the 'Russell Brown' case while the CJC inquiry was running its course: Initially, he was very quietly removed from his active role, and there were concerns in many quarters about transparency. Then the complainant himself broke his silence, and additional details trickled out afterward - though there's a dispute as to what actually happened.

The allegation seemed to be that Crump, a 31-year-old ex-Marine was with a group of friends at a high-end resort in Arizona. Brown was there for an event where Louise Arbour was being recognized with a prestigious award. Crump had left his table, and his friends invited Brown to join them, to Crump's annoyance. Brown was (allegedly) talking about how important he was, etc., and then allegedly 'followed' the group back to their room, at which point Crump confronted him, told him he was drunk and creeping out the girls.

Crump claims that Brown shoved him, at which point Crump punched him twice in the face, and Brown fell to the ground.

I have to admit...when I heard about Brown being the subject of a CJC inquiry, this doesn't fit anywhere on the list of 'what I would have guessed'. And I saw others, including employment lawyers, saying "He shouldn't have been suspended for this."

It's certainly at the low-end: It's far removed from his authority as a judge, or his role on the court. (So far removed, it's in a place where he doesn't have judicial authority at all.) It has nothing to do with any employees of the court, any litigants in matters before him or likely to come before him, and there's no suggestion that he used his position to try to escape consequences of his actions.

Still, there's at least an allegation - if one of which I'm rather skeptical - that Brown shoved Crump first, which is problematic. And there were further allegations that Brown was drunkenly engaged in sexual harassment.

The Supreme Court of Canada is an institution for which optics are extraordinarily important, and the optics of ignoring allegations of sexual harassment, even in such a remote context, would be very poor.

As I said: Until the investigation is complete, you don't know how it will turn out. An organization needs to protect itself against the possibility that the complaint will turn out to be warranted, in which case its interim conduct gets assessed accordingly.

The Role of the Investigator - the Mandate Letter

When you hire a good investigator, you can get value beyond the four corners of the allegation of misconduct. Often, investigative processes involve significant review of workplace policies, interviews with various workers at various levels, and an indepth overview of the employer's work processes.

While the core of the investigator's role is to make findings as to (a) what happened and (b) whether it breached policies or other rules, the role also extends to 'recommendations' - and when you've paid someone to get that familiar with your operations, those recommendations can double as valuable consultant work.

Let's suppose I'm brought in to investigate a complaint of harassment, and I reach a conclusion - on the specific facts - that the alleged conduct happened, but under the circumstances it doesn't make out the policy definition of 'harassment'. Ultimately, that finding is going to lead to a recommendation that disciplinary action is not called for; however, if I stop there, I'm doing the employer a disservice, because clearly there is a problem in the workplace that needs to be addressed.

Maybe it's a problem with the policy definition of harassment. Maybe additional training is called for in workplace communications - there's a large gap between "Clear and professional communication" and "disciplinable breach of policy". Maybe conflict resolution processes could be explored between the parties. Maybe there are larger issues with the work environment that need to be approached in a more comprehensive way.

The fact that an investigation may not turn up misconduct doesn't necessarily mean that it won't identify issues in the workplace that can and should be addressed. Therefore, giving the investigator a broad mandate to make recommendations regarding further measures to be taken within the workplace to improve the working environment...is value for money.

Fact-Gathering

There are basically two core aspects to the fact-gathering stage of the investigation - interviews and record-gathering. There's a loose 'structure' to the interview phase, at least in terms of who you interview, but the record-gathering is going to be contextual and interspersed.

At the outset, an investigator is likely to have the mandate letter, the complaint form (or notes from the manager who took the complaint), and any applicable policies. Depending on the nature of the complaint, there may be obvious additional records to gather at that time - video surveillance, etc.

But the two very first things that an investigator needs to do is get the versions of events from the principal participants, which usually means interviewing the complainant first, and the respondent second. The investigator needs to have an open mind: Listen to the complainant and take them seriously, but explore the details of their version with an understanding and expectation that the respondent may tell a substantially different story. At this stage, the investigator should take note of indicia related to credibility, but should not come to a determination of whether or not either person is 'believed'. The goal, at this stage, is to understand their version of events; not to come to a conclusion as to what actually happened.

Reviewing additional records too early has the possibility of tainting the investigator's judgment and early interview processes.

Those early interviews are primarily used to frame the dispute: What facts are agreed upon? What facts are in dispute? If both the complainant and the respondent are agreed on a certain fact, that fact doesn't typically call for much exploration, and the focus of the fact-gathering stage is generally going to be where the versions of facts conflict.

Ask questions to be thorough. Not confrontational, but you want to get as many details as possible at this stage, because you don't necessarily know what's going to turn out to be important. Pointing out inconsistencies isn't about challenging their credibility at this stage, but about understanding how they reconcile seemingly-inconsistent points.

But in all interviews, two things to particularly probe for: The existence of records, documents, audio/video recordings, etc. that might support one version or another; and any other witnesses who might have additional relevant information. Then interview those other witnesses...and so on.

However, the investigator has to carefully scrutinize relevance. The principal participants do not get to decide what's relevant or not. One of the ways that an investigation gets derailed is by the investigator exploring a rabbithole of claims that amount to 'character evidence' or other matters only peripherally connected to the matters under investigation.

Relevance

Relevance is a legal concept: In essence, if a disputed fact is going to be made more or less likely by the answer to a question, that question is said to be relevant.

Which sounds simple, but it isn't.

Not ALL questions need to be obviously relevant - sometimes, you ask a question to get a better understanding of the context, background, and overall narrative.

But if the respondent in a sexual harassment investigation insists he diligently observes proper workplace decorum at all times - just ask all the other women I work with on a regular basis, who can tell you my demeanour in the workplace! Depending on the nature of the allegation, that may range from 'not really relevant at all' to 'maybe has a bit of weight'.

On the flip side, it's also quite common for complainants to line up corroboration that the respondent just isn't a good guy - for example, other women who also find him creepy or have separate allegations of misconduct to make against him, etc.

General reputation isn't all that useful an investigative tool, one way or another. If there's evidence that he's engaged in specifically-similar conduct before, that may be relevant, but with a big caveat: The investigator needs to survey whether there's firsthand information to support that claim, and if there is, the investigator needs to actually expand their mandate. Usually that means getting clearance from management to formally open an investigation into the other allegation of misconduct, which means giving the respondent proper notice and an opportunity to respond. (Also, not every additional allegation that comes up in an interview needs to trigger a new investigation. A witness asserting "I once saw the respondent steal a pen from the office" doesn't necessarily require the investigator to take the steps necessary to investigate. Only if the additional allegation is relevant must the investigator do so. In the case of an additional allegation that is not relevant but objectively serious, it may be worth bringing to the employer's attention to commence a fresh investigation. On the flip side, if the additional allegation doesn't appear to independently amount to misconduct, but informs credibility or otherwise sheds light on the facts, then there's no need to expand the mandate before assessing its truth - though the respondent should still have a chance to respond to it.)

As well, investigators need to be cautious of the possibility of witnesses having an axe to grind. Often, workplace relationships come pre-seasoned with personal or professional drama, so subjective reputational assessments can be tainted by other conflicts.

So, to the greatest extent possible, an investigation should focus on the facts of what actually happened in respect of the allegations themselves, and investigators should be very cautious about getting into the weeds of external facts from which character-based inferences might be drawn.

Wrapping Up Fact-Gathering

After interviewing the witnesses and reviewing all relevant records, it will usually be important for an investigator to conduct follow-up interviews with the principal participants, to be able to address with them the points that have arisen in the course of gathering evidence that may run contrary to their versions of events, and give them an opportunity to respond or clarify their evidence.

In some ways, this is more akin to a cross-examination: Now that the investigator has a more complete understanding of the facts, they challenge the parts of the evidence that don't quite seem to fit, and see what happens. (There are different styles of cross-examination. For this purpose, I don't generally recommend an aggressive adversarial style. The point remains to ensure that you get a full understanding of each person's position. But prodding a person in a way that challenges their credibility and puts them on the defence may - in some cases, and depending on the investigator's style - help in the truth-seeking exercise.)

Yes, in many cases, this process allows someone who has been caught in a lie to simply revise their story around the lie in some obvious way. That doesn't mean we don't give them the chance to explain it; the investigator is entitled to consider the effect on credibility of a person changing their story when confronted with contrary evidence. (This is part of why it's so important to get details at the earlier interviews - because it's less likely that somebody who is actually lying will be able to provide an innocent explanation, if they've already given a comprehensive version.)

However, sometimes there's a better answer for an apparent conflict than one might expect - a plausible response that reconciles the evidence in a way that wouldn't have been immediately obvious. That, really, is why it's so important to give people the opportunity to respond to apparent conflicts, and not simply assume that their initial account was deliberately dishonest.

Sometimes, the follow-up interview identifies additional witnesses and records to interview. That's fine. There's no rule against multiple follow-up interviews if need be.

Fact-Finding and Assessment

Once the investigator has conducted all the interviews and gathered all the evidence, it's usually necessary to make certain factual determinations of relevant disputed facts. To the extent that there are facts with no serious dispute, we usually take those as agreed. To the extent that there are disputes that nothing turns on, no finding is necessary.

But to the extent of factual disputes that actually go to the questions falling within the investigator's mandate? Those need an answer.

Investigators often shy away from this: "There are competing claims on this point, and I don't have conclusive proof one way or another."

That approach tends to favour respondents (because if your conclusion is to shrug and say "I dunno", that basically means that disciplinable conduct is not established), and in particular tends to favour the bad actors among them, by setting far too high a burden of proof upon a complainant to overcome a denial.

Investigative findings should typically be made on the standard of a 'balance of probabilities' - what result is more likely than not.

So an investigator may need to decide who to believe. This means assessing credibility - bearing in mind whether one person's version of events jives better with verifiable facts; whether there's external corroboration for one person's version; whether their demeanour seemed evasive or dishonest; and various other indicia.

In a case where all the indicia are roughly equal - where neither version has external corroboration, where neither version is inherently implausible, where both witnesses seemed about equally sincere in their evidence, etc. - then you get to hide behind the standard of proof and say that the complainant hasn't satisfied you on a balance of probabilities that the respondent did what they're accused of.

The credibility assessment, and the factors underlying it, should be explicit in the report.

The next step is to apply those factual findings to relevant policies, etc., and determine whether the facts, as determined, support a finding that a policy was breached. This can be quasi-legal in some cases, which is a good reason to ensure that the investigator has legal experience and/or training.

Case Study: An Investigation Gone Awry

Here's a more-or-less true story of a real investigation I came across a few years back, with details slightly adjusted to protect anonymity. It's the most bungled investigative process I've ever seen - what should have been a short and simple investigation into a minor incident where there were no major facts in dispute, which instead turned into an absolute albatross of a deeply flawed investigation that could have easily exposed the employer to very serious liability.

The Facts

The employer receives a complaint from a related organization that a senior employee was a bit too 'familiar' with another person. The respondent insists that he's just friendly and outgoing with everybody, and that trying to get to know someone he hasn't seen before...is just his way. The complainant felt targeted, as if he was hitting on her, and it was unwelcome. He insists that no, that wasn't his intention at all. He'd interact with anyone in the same way, in that situation.

He's an older guy with many years of experience in the field; she's a young woman just starting out, in a traditionally-male-dominated role, where she needs to be taken seriously in order to do her job properly. (There's no formal hierarchy or power structure between them. If anything, her role is the one with more 'power' associated with it in the traditional sense.)

The external facts of the incident aren't really in dispute: They met for the first time on the job site, and in some natural down time on the job, he asked her questions about her personal life - whether she was married, had kids, that sort of thing.

There's no reason to doubt her bona fides about these questions making her feel uncomfortable. And, upon proper investigation, there's also no reason to doubt his bona fides about these questions just being an attempt to 'get to know' someone he'd have to work with into the future. (I want to be completely clear here: I don't fault the complainant in the least for interpreting it otherwise. She felt genuinely uncomfortable, and made a complaint, and that's fine. People should feel at liberty to make those complaints under such circumstances. None of what followed was her fault.)

What Should Have Happened

My take on these facts would be that he needs training in terms of how to respect personal boundaries of people in the workplaces, that maybe he should avoid asking probing personal questions of someone he just met who doesn't seem eager to talk about herself. Whether it crosses a threshold of harassment is...borderline. It may be fair to say that he ought reasonably to have known that the course of conduct or comment was unwelcome. (I'd lean toward saying it wasn't, however.) There's certainly no basis to call it 'sexual harassment', on the facts.

So if I'm the investigator, I likely find that a good faith misunderstanding took place, that there's no breach of policy or disciplinary action called for, but that he nonetheless should be asked to submit for training regarding personal privacy and boundaries in a respectful workplace. I would most likely also recommend a mediation session, if they both agree to it, to help the parties work past this initial misunderstanding.

How the Investigation Went Wrong

However, what actually happened is that the investigator started with the assumption that he was a predator that the workplace needed to be protected from, and sought to prove it, and with all the rigour of an archaeologist sought to unearth any element from his past that might be used to indict him.

The investigator conducted a prolonged investigation, interviewing everyone he'd ever worked with (virtually none of whom were present at the time of the incident), and came up with quite a laundry list of allegations, going back years - mostly jokes, comments, and other conduct that an HR trainer would advise against, but of which an HR lawyer would say, "I've seen far worse". Generally pretty minor stuff, and not particularly relevant to anything in the immediate investigation. (Some of it, if true, would support the conclusion that he has issues with boundaries...but hey, we already knew that.) To the extent that the investigator has to determine his motivation for the 'too-familiar' questions in the central investigation, none of the other allegations were even remotely informative of that issue.

But even worse than the archaeologist-style investigation was how the artefacts were handled once they were unearthed: They were simply...taken as true without any further investigation.

The respondent only became aware of these additional allegations after the investigation concluded, at which time he was called into a disciplinary meeting and verbally advised of this lengthy laundry list of allegations, for which he was being disciplined with an unpaid suspension. And gave him a disciplinary letter summing up the reasons for discipline as being 'reasons discussed', and indicating that recurrence of any of the conduct could result in termination.

So he was disciplined for conduct that had never been put to him, that still weren't being reduced to writing in any way, and that his only information of came from a high-pressure in-person meeting that covered a large number of such allegations, and he was told "If you do any of this again, your job is on the line."

Brings to mind the sword of Damocles, as referenced by Justice Echlin in Carscallen.

The Impact: Why the Employer Should Be Unhappy

That process was clearly unfair to the respondent in a number of ways, ultimately resulting in him being disciplined for allegations that may not be true, to which he's never had an opportunity to respond, years after the fact because it wasn't something that anybody felt, on a contemporary basis, to be important enough to raise as a concern until an investigator came and sought to dig up dirt. But the respondent isn't the only victim here.

The employer ought to have had a fairly simple and short process. It shouldn't have taken a huge amount of resources - just a handful of interviews and a short report, leading to a bit of retraining and maybe a half-day mediation session. That's all the employer should have needed to do.

Instead, the investigator spends weeks, and takes countless hours of staff time, to dredge up and investigate additional allegations completely outside their mandate; STILL fails to satisfy their duty of fairness; and presents a report to the employer with a lengthy list of findings of misconduct without having completed the investigative work to establish them.

This puts the employer into a super awkward position of needing to action these findings in some way because, well, ignoring your own investigator's findings can make you vulnerable...without being properly prepared to litigate those findings if it comes to that.

The decision to impose an unpaid suspension is what really brings this case fully into the Carscallen framework, however, and it's very plausible that the suspension, combined with the absolute railroad of an investigation, would have warranted the employee in taking a firm constructive dismissal position, which would have created large-scale liabilities and legal fees.

The OTHER Reason to Investigate: Marshalling Evidence

Often, employers shy away from investigative processes because they feel that they know enough that there's not going to be a legitimate explanation. The "what if you're wrong" scenario - which has landed employers in VERY hot water from time to time - isn't something they're worried about.

But there's a secondary question: Can you prove you're right? (And this isn't just about the core question of misconduct, but also about surrounding circumstances that may be mitigating or aggravating in terms of its severity.)

If litigation follows from actioning the misconduct - say, you fire for cause, and get sued in wrongful dismissal - there's going to be a burden on the employer to establish those facts. And once the misbehaving employee is out of the workplace, it becomes far easier for the employee to throw that burden fully on you: If they give some mitigating or exonerating version of events, you're going to ask for corroborating records to establish that version and they're going to innocently shrug and say, "I didn't take those records with me when you fired me without notice."

But while they're still employed, they have an obligation to cooperate with your investigation. They are part of your workforce, and can be required to answer questions or identify/provide records that might hurt them. If they don't cooperate, or if they demonstrably lie, that's going to really hurt any innocent explanation they may offer down the road, and very much strengthen any just cause position (if not amount to its own standalone basis to allege just cause).

So this is an effective way of securing evidence that may be difficult or impossible to obtain in the litigation process, and of locking the employee into a version of events.

As well - though this one is kind of double-edged in a way - conducting the investigation gives the employee the opportunity to take responsibility and apologize. If the employee does so, you don't have to worry so much about proving the misconduct anymore, because it's admitted, but the new challenge - if you decide to dismiss for cause - is showing that the misconduct is severe enough to constitute cause even in view of the apology, which is mitigating.

However, a failure to take responsibility and apologize very much strengthens a just cause position: If you investigate misconduct, and the employee denies or downplays it, and you later convince a judge that the misconduct is real and serious, it's going to be a relatively rare case that a judge concludes that dismissal was unwarranted in respect of an employee who refused to take responsibility for the misconduct. (I've taken issue before with courts treating the absence of an apology as aggravating where the employer never confronted the employee with the issue. That happens, but I think it's wrong in such a context. But my point is that, when confronted with the allegation, denying or minimizing the conduct will make it basically impossible for a court to conclude that cause isn't made out, if they're ultimately convinced that the employee engaged in serious misconduct.)

To be clear, some of these factors are additional good reasons to approach the investigation in good faith and with an open mind: Making a termination decision, and then hiring an investigator to justify it, will usually yield a problematic investigation, or else it risks a problematic decision-making process after the investigation.

Even if you strongly expect that the investigation will conclude that the employee is guilty of misconduct that would constitute just cause, let the investigation run its course before you commit to that conclusion.

Range of Outcomes

Following an investigation, there are a few choices. You're not bound by the investigator's conclusions in any way, but there are risks in outright rejecting them. That said, the investigator's conclusions also don't bind a court or other adjudicator, so following their guidance may still require you to prove that the adjudicator got it right.

First, you might conclude that the complaint was justified, and impose discipline on the respondent, up to and including dismissal for cause. You may have to prove that you had appropriate cause to impose that discipline/dismissal.

Second, you might conclude that no disciplinable conduct has been made out, and close the file without further action. The risk here is that, if you get it wrong, then subsequent misconduct by the individual could put you at risk of a higher degree of liability for their conduct, in creating a toxic work environment or other harms. So, down the road, you might need to prove that the decision to not act was appropriate.

Third, you might conclude that no disciplinable conduct has been made out, but nonetheless the circumstances call for further training/coaching/policy reform/etc. Changing work assignments and reporting relationships might also be appropriate to minimize workplace friction. (Again, you might have to defend your decision to not do more.)

Fourth, you might conclude that no serious disciplinable conduct has been made out, but the respondent's actions nonetheless lead you to want them out of the workplace, in which case a not-for-cause dismissal may be available. There's relatively little risk to this course of action, but there is a certainty that it will cost you something. (This is not necessarily available in unionized contexts, some Federally regulated roles, or certain Provinces.)

Fifth, you might conclude not only that the complaint was unwarranted, but that it was made in bad faith, in which case you might determine that it's appropriate to discipline the complainant, up to and including dismissal for cause. (Depending on circumstances.) If you get this wrong, and can't show that it was in bad faith, you could be in trouble here.

Note: It is generally not advisable to penalize a complainant in any way for a complaint unless you're confident that you can show the complaint was bad faith. Depending on the nature of the complaint, the jurisdiction, and other considerations, reprisals may be illegal; regardless, they're likely to be poorly regarded by a court in a wrongful dismissal action.

*****

Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.