Conducting an investigation that is thorough, fair, confidential, and timely is, to speak plainly, complicated work. Investigators must make many difficult judgement calls during the process, including which witnesses to interview, which records, texts, and emails to review, and how to weigh the various types of evidence when making findings of fact.
I have been an adjudicator for four different administrative tribunals over the course of more than 20 years. This experience has served me well since I have found that many adjudicative skills are transferable to investigations.
In the normal course of a workplace investigation, the investigator interviews the parties and the witnesses, obtains relevant documents, conducts follow-up interviews where needed, and then drafts a report using the evidence gathered.
Most workplace investigations are not subject to independent review; though they may be considered by a court or tribunal, this would usually be in the context of a separate legal proceeding, e.g., a wrongful dismissal action or a human rights case. Certain investigations, however, may include the exercise of a statutory power of decision, which may give a party a right to pursue a judicial review to challenge the conclusions reached. In such a case, the court may directly address issues such as fairness and the reasonableness of the decision reached in the course of an investigation.
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