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In my role as review counsel, I train others on how to write effective workplace investigation reports. When I review reports, much of what I focus on is readability: how is the report going to sound to the reader? Is it easy to read? Is the reader going to get confused by the report’s organization? I think about this mythical reader a lot; probably too much in fact, and I bet my colleagues are tired of hearing me go on about it.
The reason I focus on readability, though, is that it can contribute to the report’s defensibility: a report is not sound if it cannot be understood. This got me thinking about what other elements of workplace investigation reports are crucial to their defensibility. In this blog, I have set out 10 flaws that can have an impact on the overall defensibility of a report.
1) Failing to set out the investigation mandate
The report must set out what exactly the investigator was asked to do. Without this information, it is impossible to assess whether the investigator has stayed within the four corners of the investigation. It leaves the investigator vulnerable to being accused of not going far enough in the investigation or conversely, of being on a frolic of their own.
2) Failing to explain the investigation process
This is a big one. The best way for an investigator to defend what they did in the investigation is to have a comprehensive section setting out the process that they followed. This allows for transparency and for the investigator to demonstrate that the investigation meets the four “pillars” of a solid investigation: fairness, thoroughness, confidentiality, and timeliness. In the process section of a report, the investigator can set out, for example, how the respondent was notified of the investigation and the allegations, when and where the parties and witnesses were interviewed, and any anomalies or difficulties that arose during the course of the investigation.
3) Failing to set out the standard of proof
The report must set out the standard of proof that the investigator applied in making findings of fact. In other words, the report must specify the level of certainty that the investigator had to reach to make a finding. In workplace investigations, the standard of proof we generally apply is the balance of probabilities, which means that we determine what is more likely than not to have occurred. While this standard is the norm, it needs to be set out in every workplace investigation report to avoid uncertainty about which standard was applied.
4) Failing to identify the source of the evidence
The report must clearly set out the source of the evidence. When investigators stray from this, which they sometimes do, it is impossible to tell whether what is presented is evidence or the version of the events that the investigator has accepted. It makes for a very confusing read and is a flaw that is very difficult to overcome.
5) Failing to summarize relevant evidence
New investigators often struggle with how much evidence to include in the report. They tend to include too much evidence, which I think is preferable to leaving out relevant evidence. Generally speaking, all relevant evidence must be summarized. If it is not, the report can be attacked on the basis that the investigator left out key pieces of evidence that could have changed the outcome of the investigation.
6) Failing to make findings of fact
The investigator must decide which version of the facts they accept. This is what we call making “findings of fact.” For the report to be complete, there must be findings of fact about each allegation.
Moreover, the investigator should use clear, consistent wording throughout the report to communicate that they are making findings of fact. It is quite common for investigators to be ambiguous in the findings (usually when they lack conviction about where to land) or to word the findings inconsistently throughout the report such that it leaves confusion about what standard of proof is being applied. To avoid these issues, I encourage investigators to use the words “I find” or “I do not find” consistently when making findings of fact.
7) Failing to support the findings of fact with reasons
Workplace investigators often investigate matters that contain numerous allegations: it is in fact rare for us to handle a case in which there is only one allegation. This means that most reports contain many, many findings and it is easy to get fatigued when writing and forget to include reasons for each finding. But every finding really does need to be supported with reasons. A report is much more difficult to attack when the investigator has shown that they have thought about each finding carefully.
8) Failing to make a call on credibility
A lot of the allegations with which we deal as workplace investigators hinge on credibility. This is typically described as a “he said/she said” situation where there is no corroborative evidence to support either version of events. In such a case, the investigator will need to determine which party is more credible and will need to provide reasons for that determination. Without a credibility assessment, it will look like the investigator just picked a side without good reason.
9) Failing to account for contradictory evidence
This is another big one. When there is a piece of evidence that contradicts a finding, it needs to be dealt with head on. By this I mean that the investigator has to provide a reason why they gave less weight to that evidence. The failure to address such evidence leaves the investigator vulnerable to being accused of “cherry picking” to arrive at a finding.
10) Failing to reach defensible conclusions
The last section of the report is often an analysis in which the findings of fact are measured against the applicable policy (or legislation, in some cases). It is probably the most important section of the report as it can determine, ultimately, the fate of the respondent. However, after writing a lengthy report, there may be a tendency to rush through the analysis. Investigators need to resist that urge as an incomplete analysis can undermine the entire report. The investigator should look at the wording of the policy carefully and provide thoughtful reasons about how it applies, and there should be a clear determination about whether the respondent contravened the policy.
In conclusion, it is a good idea for investigators and those who review the work of investigators to verify that the elements set out above are satisfied in each report; doing so will ultimately strengthen the quality of the investigator’s work.
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